Obama Gitmo policy bumps up against reality

NY Times:

As a presidential candidate, Senator Barack Obama sketched the broad outlines of a plan to close the detention center at Guantánamo Bay, Cuba: try detainees in American courts and reject the Bush administration’s military commission system.

Now, as Mr. Obama moves closer to assuming responsibility for Guantánamo, his pledge to close the detention center is bringing to the fore thorny questions under consideration by his advisers. They include where Guantánamo’s detainees could be held in this country, how many might be sent home and a matter that people with ties to the Obama transition team say is worrying them most: What if some detainees are acquitted or cannot be prosecuted at all?

That concern is at the center of a debate among national security, human rights and legal experts that has intensified since the election. Even some liberals are arguing that to deal realistically with terrorism, the new administration should seek Congressional authority for preventive detention of terrorism suspects deemed too dangerous to release even if they cannot be successfully prosecuted.

“You can’t be a purist and say there’s never any circumstance in which a democratic society can preventively detain someone,” said one civil liberties lawyer, David D. Cole, a Georgetown law professor who has been a critic of the Bush administration.

Although the nation has long had limited legal procedures for detaining dangerous people who have not been convicted of a crime, the issue has become particularly controversial in the context of Guantánamo, where some detainees have been held for almost seven years without being charged.

Whether the Obama administration should push for a preventive detention law has inspired “a very hot and serious debate,” said Ken Gude, a national security scholar at the liberal Center for American Progress, adding, “I’ve had conversations with progressives who think it is a good idea and conservatives who think it’s a terrible idea.”

The president-elect’s transition office would not comment on whether that idea was even under discussion. But human rights groups have been mounting arguments to counter pressure that they say is building on Mr. Obama to show toughness, perhaps by echoing the Bush administration’s insistence that some detainees may need to be held indefinitely.

The international law of warfare provides authority for governments to hold captured enemy fighters until the completion of a conflict. Tens of thousands of German and Italian prisoners of war were held inside the United States during World War II.

But particularly inasmuch as the Bush administration invoked that authority as a basis for its much-criticized detention policies, a move by Mr. Obama to seek explicit authorization for indefinite detention without trial would be seen by some of his supporters as a betrayal.

Opponents of a preventive detention law say that continuing to treat captives as detainees instead of defendants in court would support terrorists’ self-image as warriors rather than criminals. And though the Guantánamo center might be closed, they say, the new law would effectively import Guantánamo and its image into the United States.

“Not only do you not need a system of preventive detention, but it would perpetuate the problem of Guantánamo and put us right back in the same dead end we are in now,” said Elisa Massimino, executive director of Human Rights First.

On the other hand, some proponents of such a law say it would clarify questions left murky by the Bush administration’s years of legal battles over Guantánamo. Benjamin Wittes, a fellow at the Brookings Institution, argued in a book published in June that Americans needed to cross a “psychological Rubicon” and accept the idea that preventive detention was a necessary tool for fighting terrorism.

“I’m afraid of people getting released in the name of human rights and doing terrible things,” Mr. Wittes said in an interview.

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The lawfare approach that Obama wants to return to was a failure in preventing 9-11. Returning to such a fail policy makes sense only to liberals who are more concerned about the political consequences of releasing terrorist than the actual harm that will be done to the US. The Bush policy has been effective in preventing attacks on the US, and the Clinton policy was not.

One of the mistakes the Bush team has made is in giving credence to argument that these terrorist should be tried in the first place. They should be detained until the end of the conflict period. If al Qaeda wants them released sooner they can quit making war against us.

One of the biggest problems with lawfare is that it turns intelligence information over to the enemy in a time of war. The commissions process tries to deal with this problem, but its efforts don't come close to solving the due process issues for the purist. Those purist also don't answer the one question that would cripple their argument for lawfare. Are terrorist captured on the battlefield entitled to a Miranda warning? Are we wiling to fore go evidence of future attacks and provide lawyers to terrorist during interrogation?