Essentially, the administration would propose legislation that would result in dividing the estimated 375 Guantánamo detainees into three legal categories. The one that would call for legislative action would include detainees like Khalid Shaikh Mohammed, the mastermind of the September 2001 attacks, and others whose trials would risk exposing intelligence operations. This group, estimated at two dozen to 50, would be placed indefinitely in military brigs on American soil.What is developing is the mutant justice that results when we decide our legal system only applies to the physical boundaries of the United States (the "Holy Ground"), and outside those physical boundaries, all heathens, er, excuse me, "foreign nationals," deserve whatever treatement they suffer, er...detention without charge and without trial. Because foreigners are...well....you know...scary dangerous men who hate us for our freedom.
A second group would also be moved to the United States, most likely to face trial in military courts, but perhaps with more legal guarantees than in the current military tribunal system.
The third, and largest, group would consist of detainees to be released to their home countries.
At the heart of the discussion within the administration is the concept of legislation that would set out a way to process, classify and incarcerate terrorist leaders and enemy combatants who are regarded as significant, continuing threats.As long as we are "reasonable" about it, there is no reason not to treat foreign nationals as people who must be locked up forever without charge because we are afraid of them. After all, it's not realistic to think we could treat them like human beings, or give them justice. Especially if justice meant they were to be released after being found "not guilty." I mean, what country would stand for that?
The most senior administration official to describe the concept publicly is Mr. Gates, who said, “I think that the biggest challenge is finding a statutory basis for holding prisoners who should never be released and who may or may not be able to be put on trial.”
Mr. Gates said the challenge to finding a legislative or administrative solution was “the nature of the information that is against them, if it involves sensitive intelligence sources or something like that.” But, he noted in comments on Friday, “people are working harder on the problem” in the administration.
Prof. Neal K. Katyal of Georgetown University Law Center said that in the wake of the Supreme Court’s announcement on Friday, it might be an opportune time to explore a new legal approach to detaining terrorism suspects inside the United States, perhaps a special national security court with different standards of proof than those of criminal courts.
“Is it possible to draft something that gives less than the full-blown rights of a criminal trial for those facing detention and for that process to survive a Supreme Court review?” he asked. “I think it is.”
Professor Katyal, an opponent of the administration’s detention policies, said nonetheless that “it’s not realistic to think that all people can be tried in an ordinary criminal court.”
'No, no!' said the Queen. 'Sentence first - verdict afterwards.'Yes, we are in Wonderland (and you owe it to yourself to read the courtroom scene from Chapter 12. Coming soon to a terrorist trial near you.) Because, you know:
“I think a very real argument could be made that, as long as you’re not changing the basic legal construct of how we’re holding them and why we believe we’re entitled to hold them,” Mr. Liotta said, “no matter where you put them,” the controversy will continue.Really need to resurrect that "divine right of kings" concept. Now that we've done away with habeas corpus for non-American citizens, we might as well toss out the rule of law that restrained the sovereign, too. After all, there is the matter of the existential threat.
And besides, we can't have foreigners violating the Holy Ground and getting the protection of our sacred laws. That is only for those worthy of them; like, say, Scooter Libby.
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