Obama’s newest (murky) plans finally offer an alternative to Bush’s Military Commissions, as well as the possibility that Guantanamo Bay’s Camp-Delta will be shut down once and for all. Such a decision cannot happen immediately, much to the ACLU’s chagrin, but the very idea that it could happen at all comes as a relief to human rights advocates and legal scholars alike. (Thanks to How Appealing for the story).
So what is Obama proposing? Andrew Cohen of CBS News outlines Obama’s possible tripartite scheme to deal with the 250 or so prisoners remaining at Camp-Delta. The details are not readily available, but they include two controversial parts that have been bandied about in the media recently and discussed on well known legal blogs: 1) bring those suspects who have less egregious “garden variety” terrorism charges to the United States to stand trial in Federal Court; and 2) create a new, largely secret court in the United States to handle the most egregious offenders, such as masterminds like Khalid Sheikh Mohammed, currently on trial at Guantanamo Bay.
Part one would be controversial, but not without precedent. The U.S. has tried suspected terrorism suspects in open court before, such as the recent prosecution of Zacarias Moussaoui. However, extending due process rights to terrorism suspects makes some worry about exposing national security secrets. Such a right could mean exposing a terrorist snitch or shedding light on confidential intelligence gathering methods. However, American courts try extremely dangerous criminals everyday using evidence provided from confidential sources. In camera inspection and gag orders can be crafted to remedy possible security concerns, and in any case, these suspects would not be high level detainees tried with sensitive evidence.
Part two is even more controversial, and it is questionable whether President-elect Obama would have the authority to create an entirely new court system. Obama’s proposal, although at an early stage, also sounds like it might suffer from the lack of transparency currently plaguing Bush’s Military Commissions.
Egregious problems with the current system include the use of evidence obtained by torture such as waterboarding, and not allowing defendants to see the evidence against them. If one takes Obama advisor Laurence Tribe at his word, however, these important issues will be addressed with these new courts: “It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts… it will have to both be and appear to be fundamentally fair in light of the circumstances.”
Hopefully, Tribe’s idea of justice and fairness is in line with the basic ideals outlined in our Constitution and the Geneva Conventions. If they were, this new system would definitely be far, far different than the current regime put into place by the Bush administration.