The New Republic

...But how should they be prosecuted? In civilian court? Or by military commission? Frankly, I don’t understand the difference in reasoning for one or the other... You are kidding? Regardless of how you see the issue, if you don't understand the arguments, save for the one you mention, which is second order, after so much venitilation--here, there and everywhere--well, sir, that is perplexing.

- basman

January 24, 2010 at 11:20am

I'm a little surprised to hear that Obama argued that Abu Ghraib and Gitmo were recruiting tools for AQ "for the emotional gratification of his supporters." I think it's a lot more likely that he argued that position as (a) the argument makes sense and (b) neither case shows the U.S. acting in accordance with the principles we tend to demand that others respect.

- ironyroad

January 25, 2010 at 3:55pm

I'm a little surprised that you're a little surprised that someone pointed out the political uses campaigning Obama made of the conventionally understood signifiers of all that was Iraq and "War on Terror" bad to mark, as against Hillary and then McCain, his Iraqi and War on Terror rectitude. Problems include that over time Abu Ghraib rightly came to be understood as an instance of the nothing new that war as hell and that campaigning Obama wrote a Gitmo cheque that presidenting Obama is having trouble cashing. That as against the present eminent sensibleness of not closing Gitmo, the continuing recruitment argument-- i.e. "...as if the terrorist international require ‘s’(my slight emendation) visual proof of the evils of the United States...” is hollow seems to me unassailable and further illustrates presidenting Obama being hoisted by campaigning Obama. (Same thing, if you ask me, with the civil trial decision for KSM so clearly offensive to your countrymen but being continued regardless—precisely one of the issues Scott Brown ran on. I don’t remember such civil trials for terrorists being a specific campaign issue but it’sclearly consistent with the campaign’s ideological thrust in these matters.)

- basman

January 25, 2010 at 10:15pm

oh for heaven's sake, gitmo is not American territory, which is the whole point, it is sovereign Cuban territory which we lease. As far as I am concerned we can ship them all out to Johnston atoll, which is indisputably an American territory where in short order they will be forgotten about by everyone except the few soldiers who get rotated in and out of there. gitmo is a disaster, and one which the Cuban fascists oligarchs consistently use to repress their people, or doesn't anyone America imagine that (yes, they will repress their people regardless, but when the two brothers finally depart don't you imagine that gitmo being used in such a fashion just might be a blight to even liberal and progressive Cubans, or are you so foolish to imagine that they have no pride? The promise of the eventual repatriation of their land to truly Democratizing forces might be better affected if we don't have a bunch of looney terrorists there.) Vive Cuba Libre, except for the fact we want to use your land as a political toilet, in which case well, lets just bury our heads in that sand about that and pretend that this is what the Cuban people really want)

- blackton

January 26, 2010 at 6:23pm

Basman, I don't really follow your second post above. But I think it is rather glib to conclude that because there would nevertheless be terrorists and terrorism in the absence of Abu Ghraib and Gitmo, the practices that occurred in those prisons could not serve as an incremental inducement to terrorism. That said, the primary issue with Gitmo is not its physical location or its symbolism. The primary concern is what has occurred there -- torture and denial of due process. Torture presumably has been discontinued. But as long as detainees are imprisoned indefinitely without being charged and being given a fair hearing, there continues to be a denial of due process. Blackton, the Supreme Court has held, rightly I think, that Gitmo is, for all practical purposes, and for constitutional purposes, American territory. It is 100% within the control of the US, and the lease has no termination date. Therefore, the requirement of constitutional due process applies to detainees held at Gitmo, even if it might not in some location that clearly is not within US control. (Whether we nevertheless should abandon Gitmo for the reasons you suggest is another matter.) Gitmo or not, the real issue (now that torture presumably no longer occurs there) is whether the remaining detainees are entitled to be charged and tried (or else released), and, if so, where they should be tried, in civilian courts or before military tribunals. Taking the last question first, there are at least two factors that favor civilian courts. First, the US Constitution requires criminal defendants to be tried in the district where the crime allegedly was committed. Therefore, if KSM, for example, is a criminal defendant, then he MUST be tried in a federal court in New York. (I have made this point before, Basman, and you have not responded to it.) Second, according to lawyers I know and respect, and who have represented Gitmo detainees, the military tribunals are kangaroo courts that do not provide anything close to constitutional due process. But that brings us back to the question of whether the detainees are entitled to be charged and tried -- or else released -- in the first place. It is not an answer to say they are not entitled to due process because they are "terrorists." That is a circular, question-begging argument. Obama said quite a few months ago in a speech that he believed there were some Gitmo detainees who could not be tried (because there is insufficient evidence upon which to convict them), but who are too dangerous to release. He said he was going to explore a way to constitutionally imprison them indefinitely, i.e., to implement "preventive detention." He said that the preventive detention would require congressional and/or court approval, and would be subject to periodic review by a federal court. I was interested in what kind of argument the Justice Department would construct to argue for the constitutionality of such a practice. Now, the Justice Department has announced that it will employ indefinite, preventive detention in certain cases, and I am still wondering what the argument is that this practice does not violate the Constitution.

- dhurtado

January 26, 2010 at 8:50pm