A Rose By Any Other Name

By Cernig

The AP reports an officially unofficial leak from the Obama team that closing Gitmo is a priority for the new administration.

Under plans being put together in Obama's camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts.

That's good. This bit isn't so good:

A third group of detainees — the ones whose cases are most entangled in highly classified information — might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. Advisers participating directly in the planning spoke on condition of anonymity because the plans aren't final.

U.S. courts handle cases "entagled in highly classified information" on a reasonably regular basis and the forms for dealing with such cases are well established. That phrase is a euphemism (or "lie", to the unsophisticated).  Spencer Ackerman has it exactly right:

If there's anything the military commissions process should have taught, it's that reinventing the legal system doesn't work, as evidenced by the bevy of military lawyers who have resigned in protest of the commissions. The concern, stripped of euphemism, is that the evidentiary basis for many trials of Guantanamo detainees -- including, in many cases, torture -- would never be admissible in any court worthy of the name. That's the Bush administration's legacy. But it can't be the basis for cheapening our legal system.

So we'll wait to see what proposal actually emerges. But consider not only that this is one of the first initiatives that Obama is pursuing -- it's one of the first that he's leaking, as well. This is as clear a signal as can be sent that the Bush era isn't just over, it will be actively rolled back. How far it actually gets rolled back we'll have to wait and see. And pressure.

If the US cannot get convictions in either civil or military courts under the full panoply of law, even if those trials have to be held partially in camera to protect necessary national security secrets as provided for in law already, then the US has scewed the pooch and tainted those prosecutions indelibly with torture, illegal rendition and kangaroo justice. Under those circumstances even Hannibal Lecter would walk - and anyone who understands why these things are anathema to normal jurisprudence would say that was a good thing as a universal standard even if no-one would be happy about individual instances.

If the Obama administration cannot see that, then they will have made themselves complicit in the massive crime that the Bush administration has perpetrated through Gitmo, Bagram , Abu Graib, and a host of secret prisons and illegal torture flights. It doesn't matter whether travesties of justice are conducted on the mainland U.S., at the resort in Cuba or in some undisclosed location - they're still travesties of justice. A rose by any other name would smell as sweet and any "hybrid" having any relationship to Bush's rigged tribunals would stink just as highly.

Comments

[smintheus]

Yup, this looks bad. There's a good reason why defendants are permitted to confront their accusers and challenge the evidence against them. It sounds as if Obama's advisers are contemplating (i) creating a new court system (bad idea per se) that (ii) will deny defendants some of their rights to confront or to challenge, and (iii) keep accounts of the most extreme forms of torture from being made public.

The problem is even greater than Ackerman allows. Every prisoner subject to "exploitation" processes at Gitmo and elsewhere has been tortured. That's what prolonged isolation, sensory deprivation, etc. is under international law. The US government either admits that - and presumably must then accept culpability and release the prisoners it has abused, or denies it and tries to justify the unjustifiable, or tries to find some means to push the question of torture out of bounds.

It's more than a question of poisoned fruit, as important as that is. It's about whether to prosecute US officials and allies for criminal abuse of prisoners. The only reasonable assumption on the evidence we have is that the authorization to abuse prisoners came from the White House. Therefore the Obama administration will have to decide whether to expose the Bush admininstration's crimes - and if so, whether to prosecute.