Liberals want to move the Guantanamo terrorists onto U.S. soil and five members of our Supreme Court have granted them due process rights. The administration has attempted, without success, to send home about 80 of the 375 or so Guantanamo detainess yet many nations will not take them back. Why should Yemen, where organized escapes have already freed terrorists, to include some of those involved in the bombing of the USS Cole, want them back? From their point of view, the detainess should remain the Bush administration’s problem. In addition, our laws and legal challenges have kept us from releasing some detainees to nations where they might be treated inhumanely. Yet if Guantanamo is closed, those terrorists might someday be released to move in next store to you, as David Rivkin and Lee Casey explained today in the Wall Street Journal:
There are three basic alternatives to Guantanamo: First, transferring the detainees back to U.S. bases in Afghanistan (such as Bagram Air Base) or elsewhere in the world; second, bringing them to the U.S. to be housed, still as captured enemy combatants, at federal military or civilian prison facilities; or last, having brought them to American soil, processing the detainees through the criminal justice system as civilian defendants, much like the “20th” 9/11 hijacker Zacarias Moussaoui.
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Despite the rhetoric of the administration’s critics, the detainees are not now subject to indefinite detention. Under the laws of war, they may be held until the armed conflict is over, at which time they must be tried or set free. The laws of war do not provide a basis for post-conflict preventative detention, and the constitutional basis for such detention is far from obvious. To date, the courts have accepted truly preventative detention in only very limited circumstances, generally involving cases in which the prisoner has a mental disease or defect.Thus, even assuming that congressional Democrats would accommodate the administration’s request for such legislation — and they do not appear to be in an accommodating mood — the government may still lose the inevitable legal challenges. These are likely to be even more difficult than the one arising in the Guantanamo context which the justices have docketed for next fall. The administration could find itself having to charge the detainees as civilian criminal defendants or watch the courts release them onto America’s streets.
This frightening possibility is real enough, because the final option — processing the detainees in the civilian court system — is also not possible. Some of the detainees would not be subject to trial in the United States at all because, unless they have actively opposed U.S. forces or otherwise directly targeted U.S. nationals, they are not obviously subject to American criminal laws. Attacking U.S. allies is not necessarily an adequate basis for jurisdiction. However, even if the underlying statutory framework were available to prosecute most of the detainees as civilian criminals, the government would be fatally handicapped in presenting its case.
Leaving aside the fact that evidence against the detainees has not (and could not have) been collected at overseas battlefields in accordance with normal exacting police procedures, the Constitution requires that every element of a criminal charge be proved beyond a reasonable doubt by admissible evidence presented in open court. This would require the compromise of classified, national security information being used as the price of a conviction. Although proponents of a criminal law approach to al Qaeda often claim that the Classified Information Procedures Act (CIPA) answers this objection, it does not.
CIPA permits the government to protect classified information throughout the pre-trial, including the “discovery,” phase of a criminal prosecution. In addition, it allows the court to consider whether there are acceptable evidentiary alternatives to the admission of classified material at trial. However, if the court does not accept those alternatives, or if it concludes that the defendant would not receive a fair trial without the use of classified information, the government must accept the disclosure of that information (damaging the war effort) or see the case dismissed. Meanwhile, as was the case with the indefinite administrative detention option, any statutory restrictions on a defendant’s right to have the evidence against him presented in open court — another legislative option allegedly contemplated by the administration — is neither likely to be adopted by Congress nor blessed by the courts.
No problem. If terrorists are released onto America’s streets, I am sure the 50 states will just pass more watch-list legislation, sort of the Todd Beamer’s Law equivalents of Megan’s Law. Yet that will not even happen for they will not have a criminal conviction on which to base the registration.
The Democrats are tough on terror? Yeah, right.