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Obama’s Plans to Close Gitmo Prompts Hard Questions

As The Associated Press reported on Monday, President-elect Barack Obama is wasting no time in making plans to close the Guantanamo Bay detention center and ship the current prisoners out of there. Where they go, what happens to them and what happens to all the other suspected terrorists still in U.S. detention around the world, though, remain open questions.

The AP reports that, according to unnamed advisers, some Gitmo prisoners would be released — since as their lawyers have been maintaining for years, there’s apparently little evidence to support holding many of them. Others would be given regular criminal trials in U.S. federal courts. Others, however, might have to face a new national security court that the Obama administration would create.

That part of the proposal is causing considerable controversy. Though Obama adviser and Harvard professor Laurence Tribe has been maintaining for years that military commissions could be useful in this situation, even though he claimed the Bush administration’s commissions were unconstitutional, many legal advocates — including organizations like the ACLU and many of the lawyers who have defended Gitmo detainees in habeas corpus cases — have argued strenuously that special courts aren’t necessary. The criminal court system that we use to try suspected criminals here in the U.S., these legal advocates say, works just fine.

As I’ve written before, prominent criminal defense lawyers, including former federal prosecutors in a comprehensive report for Human Rights First analyzing the prosecution of more than 100 terrorism cases, have found that the existing federal criminal justice system is sufficient to prosecute terrorism, and that special military commissions aren’t needed.

ACLU executive director Anthony Romero argued:

Any effort by President-elect Obama’s transition team and their advisers to develop new procedures to try the Guantánamo detainees is a distraction and a doomed effort. We have the best systems of justice in the world –- either through the Uniform Code of Military Justice or through our criminal-court system. President Bush made the terrible mistake of believing he could make up a new system of justice for terrorism cases and that experiment failed miserably. Any attempt to secure convictions by diluting basic due process safeguards will have lasting implications that are unlikely to be confined to Guantánamo.

If the Bush administration violated prisoners’ rights by torturing them in order to get a confession, no new law or legal system will fix that taint. If the only evidence against a Guantánamo detainee was obtained through torture, then there is no reliable evidence that can be used in an American court. A new legal system designed to get around that unfortunate legacy is destined for years of legal challenges by advocates who rightly believe that, under our system of justice, no one’s rights are safe unless everyone’s rights are protected.

That may well be true, but it leaves the new Obama administration in a particularly difficult position. The Bush administration’s treatment of so-called “military combatants” has made normal federal prosecution of some of those people now virtually impossible. Evidence obtained by torture or other forms of coercion are not admissible in U.S. courts.

By using such “enhanced interrogation tactics” against detainees, U.S. officials have put the next administration in a bind: either deny these prisoners the rights we have long afforded to suspected criminals in this country, or let potentially dangerous people go.

Obama has some of the best legal minds in the country working to advise him on this. But it’s a problem for which there may be no good answer.

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