Blog on the Run: Reloaded

Thursday, June 3, 2010 8:37 pm

Translated: We screwed up dozens of lives illegally and now we don’t know what to do about it


The Washington Post has obtained a copy of the Gitmo task force report. There’s a lot to digest — and logarithmically increased levels of bile are never good for digestion — but as usual, Emptywheel provides a decent plain-English summary of some fairly complicated legal issues (as well as some less complicated moral ones):

  • “Concerns” about tainted evidence explained why at least “some” of these people cannot be prosecuted. I take that as a shorthand admission that these men–or their accusers–were abused in US custody. And the solution, apparently, is to just keep them in custody. The report doesn’t say how the government can trust the evidence itself if it is tainted. I guess they just know.
  • For a significant number of the 48 men slated for indefinite detention, there is no evidence that the man participated in terrorism. Indeed, given the description, it appears there isn’t even any evidence the man took part in an attack on American troops (even granting the government claim that all such attacks were necessarily illegal and not self-defense, which is itself bogus). And given the timing implied by the October 2001 deadline, there’s not even any evidence these men continued their affiliation with Al Qaeda after 9/11 made it clear the organization was attacking US civilians. In short, a significant number of these 48 men are just like the mujahadeen the US used to fund in the glorious Reagan days. But in the glorious post-9/11 days, such actions qualify a man for indefinite detention.
  • The report also notes–without giving any details–that the eight year statute of limitations has expired for a number of these men. You see, we’ve held these men with no charges for so long that now we can’t charge them, so we’ll just indefinitely detain them with no charges instead (which has the added benefit that the standard of evidence for detention in a habeas proceeding would be lower than that in a civilian trial).
  • Finally, the report admits that it doesn’t want to charge some of these men with material support for terrorism because the 15 year maximum sentence presents “sentencing considerations.” To further translate, the government doesn’t want to charge these men with material support because they won’t be able to hold them long enough, even if they get a conviction. The government wants to hold them longer than Congress legislated the crime merited and so instead of charging them, the government will just hold them. Also logically included in that premise is the assumption that, first of all, this indefinite detention equates to “more than 15 years” of detention. And the assumption that the legal justification for holding these men–the AUMF–would extend at least 15 years from now.

This all just flies in the face of the rule of law. Indeed, it strongly suggests that some government lawyers should be losing their licenses.

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