Friday, May 22, 2009

"Prolonged Detention"

This issue got Rachel Maddow quite exercised last night:

Like many in left blogistan, Rachel wants Obama to be the anti-Bush, much as the Bush Administration seemed driven, at one time, to be the anti-Clinton: if Clinton did it, the Bush Administration wouldn't. And while the idea of "prolonged detention" struck me as a dubious one, too, I tried to think first of the justification for such an idea. And then it occurred to me: the idea of closing Gitmo is to release the detainees there. But the sticking point has been: release them where?

Some, like the Uighurs, are innocent and wholly deserving of repatriation, but returning them to China would be returning them to danger; so that door is closed, yet another stubbornly refuses to open. Now, what about people the international community deems dangerous, and we do, too? But we cannot hold them, we have no evidence (presumably) sufficient to convict them, even in a military tribunal. If we release them, where do we do it? To wander the base at Guantanamo? No country will admit them; do we then drop them in Haiti, or Somalia, or some other country with a weak central government, one almost incapable of denying us the disposition of these persons? Where, in fact, do they go, if they have nowhere to go, if no country will grant them entry? This is not an issue of due process. We cannot sue other governments under "universal jurisdiction" or complain under the terms of the Geneva Convention, for there are not terms for this. Countries have a right to deny entry to anyone they want or even, in the case of North Korea, almost anyone at all. Aa Condi Rice said in 2007:

"One of the things that would help a lot is, in the discussions that we have with the states of which they (detainees) are nationals, if we could get some of those countries to take them back," Rice said in a Dec. 12, 2007 , interview with the British Broadcasting Corp. "So we need help in closing Guantanamo ."
Help we are still not getting. What, then, is the alternative?

It may be Obama is simply trying to make legal what is now almost patently illegal, and he is trying to bring "prolonged detention" into line with our Constitution and our laws by engaging, as Robert Gibbs told NPR, the Congress and the Courts, so that the tripartite system of the government works on this "mess" (the President's words) that was left by the former Administration. If we can't release these "detainees," we need a legal framework to justify holding them, not merely the dictate of the Presidency. Until we can release them somewhere besides Anarctica, until we can release them in accordance with our obligations to international law, it may be we have an obligation to our legal system to at least attempt to make their prolonged detention legal.

We are stuck with is the result of Dick Cheney's "unitary Presidency" and American exceptionalism, and George W. Bush's agreement or at least acquiescence to those ideas.

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