Wednesday, January 21, 2009

The beginning of the end of Guantanamo Bay

Good news making the rounds: "Prosecutors request suspension of Guantanamo trials on order from Obama."
Military prosecutors have requested a suspension of trials at Guantanamo Bay on orders from newly installed U.S. President Barack Obama.

Obama verbally requested a 120-day continuance in the trials through U.S. Secretary of Defence Robert Gates, according to a spokesman for the military commissions at the U.S. naval base.

Prosecutors then filed the request with judges hearing the cases of Canadian Omar Khadr and five men accused in the Sept. 11, 2001, attacks.

"In the interests of justice, and at the direction of the president of the United States and secretary of defence, the government respectfully requests the military commission grant a continuance of the proceedings… until 20 May," states the motion, filed late Tuesday.

It says the adjournment is needed to permit the new president and his administration "time to review the military commissions process, generally, and the cases currently pending before military commissions."

The pause in proceedings would also provide the administration time to conduct a review of the cases of detainees held at Guantanamo Bay to determine whether future prosecution is warranted and if so, in which forum.

The motion, which applies to all cases that have been referred to the military commission, will be argued Wednesday morning. It will be up to the judges to decide whether to grant adjournments.
While Khadr's lawyer, Lt. Cmdr. Bill Kuebler states he will be opposing the motion in order to seek a complete withdrawal of the charges against Khadr, because that's his job, there's reason for optimism here. Assuming the judges go ahead and grant the requests for adjournment, there will be a review of the cases by the new Obama team. On that team are some of the most prominent American legal scholars with distinguished records that, particularly in respect of detainee policies, speak for themselves.

Neal Katyal, incoming deputy solicitor general:
Legal Times has confirmed that Georgetown law professor Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, will serve as principal deputy solicitor general, the office’s No. 2 spot, starting Tuesday.

Katyal's appointment is another strong signal of President-elect Barack Obama's intentions to depart sharply from the terrorist detention and interrogation policies of the Bush administration. In Hamdan, the Supreme Court found that the Bush administration's military commissions for trying suspected terrorists violated the Uniform Code of Military Justice and the Geneva Conventions. The case, which marked Katyal's first appearance before the high court, was a stinging rebuke to the president's broad assertion of wartime power.
Dawn Johnsen, new head of the Office of Legal Counsel:
When Dawn Johnsen read a newly disclosed Justice Department legal opinion last April that blessed the president’s broad power to authorize rough interrogation tactics, she was outraged.

The legal memorandum, she wrote in a blog entry, was “shockingly flawed,” the constitutional arguments were “bogus,” the broad reading of presidential authority “outlandish,” and the “horrific acts” it encouraged against prisoners were probably illegal.

“Where is the outrage, the public outcry?!” Ms. Johnsen, a constitutional law professor at Indiana University, demanded in the posting.
Marty Lederman:
As of today, the commencement of the Obama Administration, he begins work as Deputy Assistant Attorney General in the Office of Legal Counsel.
Here's just one point of many that Lederman has blogged on Khadr at Balkinization:
This is hardly the most disturbing thing about the Khadr case. According to Phil Zelikow, under the Administration's "new paradigm," military commission trials are supposed to be reserved for the big fish directly involved in terrorist activities, against whom such trials have historically been used -- "for major war criminals and al Qaeda’s leaders."

That hardly describes this case.

In almost any other armed conflict, the military probably would not think to try even an adult for most of the sort of battlefield conduct at issue here. It appears that the only difference in this case is that Khadr was not in uniform -- which hardly seems a good enough reason to treat his battlefield combatancy as a war crime. (The spying charge, on the other hand, is similar to charges that have been tried by military tribunals in past conflicts.)

Moreover, Khadr was fifteen years old when we captured him. As Victor Hansen and Lawrence Friedman write:
Even assuming that Omar Khadr did in fact throw a grenade at U.S. forces during a firefight in Afghanistan, he clearly does not fit into the category of the “worst of the worst” that the administration claims are being detained and prosecuted at Guantanamo. At most, he was a 15 year-old foot soldier doing the bidding of much more dangerous and culpable terrorists. . . . Why . . . is the U.S. spending time, effort and resources, and squandering what little international goodwill it may still enjoy, on prosecuting a 15-year-old alleged foot soldier of Al Qaeda? Why weren’t these foot soldiers “turned” and used to go after mid-level and senior members of Al Qaeda? . . . . It seems to us that this prosecution of Omar Khadr is really emblematic of the complete failure of Guantanamo and the military commissions system. While many of the “worst of the worst” remain at large, the U.S. seeks to prosecute a child by military commission who, if he were an American citizen would not be subject to courts-martial jurisdiction because of his age.
And here's Marcy Wheeler's take on Lederman:
"We've replaced the guy who did Bush and Cheney's evil bidding with a blogger-prof and Constitutional champion, Marty Lederman."
Further, Scott Horton briefly weighed in on the Obama Justice picks, yesterday:
Today, Barack Obama has completed his choices for the Justice Department’s “brains,” and his picks provide good reason for hope that the old Justice Department—an organization of which all Americans can be proud—is returning. Dawn Johnsen, David Barron, and Martin Lederman will be the senior political appointees in charge. This team has tested experience in the Department of Justice and a strong sense of the institutional dignity that Justice once exuded. Johnsen, Barron, and Lederman have distinguished themselves over the last four years with the most intensive and penetrating analysis of the disintegration of the Office of Legal Counsel (OLC).
Throw in Attorney General Eric Holder's comments at his confirmation hearing and I think you get the picture, without having to go through the entire team.  The idealists will meet cruel reality, yes, but in light of Obama's signal line in yesterday's inaugural address that there should be no trade-off between safety and ideals, they're likely going to be on the right track as they review this mess.