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Jewish World Review
Nov. 23, 2009
/ 6 Kislev 5770
Why it's a mistake to bring Gitmo prisoners here
Of all the changes Barack Obama is trying to bring about, there is one that would have stunned and dismayed his most ardent supporters, had they foreseen it during the presidential campaign. After all his talk of American values and loyalty to the Constitution, Obama is positioning himself to become the man who brought indefinite detention to the United States.
Under his leadership, we might soon have in our midst a group of people accused terrorists currently residing at the U.S. facility in Guantanamo Bay, Cuba who are permanently imprisoned, yet have never been charged with or convicted of any crime.
It's a development many Americans across the political spectrum find deeply troubling. They are uncomfortable with the thought of anyone, even foreign terrorists, being held inside the U.S. indefinitely without charges, in violation of the most basic American constitutional protections. In addition, the U.S. is not in the habit of keeping prisoners of war on American soil. If such detention is necessary and most Americans believe that it is, given the reality of the War on Terror it is better done under military auspices in Guantanamo, Afghanistan or somewhere else outside the U.S.
The people involved are known collectively as "Category Five" detainees. That is a reference to Obama's May 20 speech at the National Archives in which he divided the current residents of Guantanamo into five groups.
There are those who will be tried in civilian courts. Those who will be tried by military commissions. Those who have been ordered released by the courts. Those who will be transferred to other countries. And then there are those in Category Five, whom Obama described as "detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people."
Obama pledged not to release them and said he would work to come up with a legal plan under which holding them without charge in the United States he called it "prolonged detention" would be "consistent with our values and our Constitution." He offered no ideas about how that might be done.
Fast-forward to Wednesday, when Attorney General Eric Holder appeared before the Senate Judiciary Committee. Much of the session was devoted to Holder defending the decision to grant 9/11 mastermind Khalid Sheikh Mohammed full American constitutional rights and a trial in New York. But Democratic Sen. Russell Feingold, a longtime critic of indefinite detention, brought up the Category Five detainees.
"Is the administration currently contemplating holding some detainees without trial for an indefinite period of time?" Feingold asked.
"The possibility exists that at the conclusion of our review with regard to the detainees, the people who are held at Guantanamo, that there will be a number of people who we will seek to detain under the laws of war," Holder answered. Holder assured Feingold that such confinement would be done "consistent with due process." He, too, offered no details.
Whatever is done will be a decision made entirely by the president. Back in May, Obama said he would "work with Congress to develop an appropriate legal regime" to deal with Category Five prisoners. Now, with few Democrats on board for indefinite detention in the U.S., he's abandoned that pledge and believes he can do it based on the authority he has as president.
Bringing them here will intensify the heavy litigation surrounding their cases. It's inconvenient for the detainees' lawyers to travel to Guantanamo for proceedings; it'll be much easier at home. In the end, there will be increasing pressure to free the detainees, no matter what the president says. "The logical fear is that while they are in the United States, some judge somewhere will say, 'You've held them long enough let 'em go," says a high-ranking Republican Senate aide.
All of this is unnecessary. As Republicans have repeatedly pointed out, there is already a perfect facility for dealing with these cases Guantanamo. Not only is it designed for the job, it's also in the right place that is, not in the United States. No one should be happy with the idea of holding prisoners forever without charges inside the U.S., even if it's done by a president who says he's being true to American values.
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