Note: This could be a post I’ll be referencing in the future — not just a thought for the day. I could be making changes periodically. Apologies in advance for the length. [shortcut: http://wp.me/p71dva-7V ]
A guest of Bill Maher recently complained of Guantanamo, “people have not been charged, or tried, and what happened to rule of law? That’s the whole principle of the Constitution.”
She apparently has been lied to, and it’s about time we clear this up. We see a lot of articles about Guantanamo detainees being “released without charge” or “never charged with a crime.” They want us to believe we’d have convicted them if they weren’t innocent.
The short answer is: The founding fathers knew charges and trials are for crimes. This is a war.
That’s not a flippant answer either. Where the Fifth Amendment to the Constitution says, “No person shall be held to answer for a capital, or otherwise infamous crime, unless…,” — right there you can see they are obviously talking about crimes. They were very careful about the words they used (much like the way they outlawed torture but only as punishment).
Then in the Sixth Amendment, it begins, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…” Again, they were very specific that this was about crimes.
People have gotten the mistaken idea that one can either be a civilian entitled to due process, or a prisoner of war entitled to the rights and privileges of the Geneva Conventions, but nothing else. Well, that’s not true. We have often held people without trial during wartime without POW status — and in peacetime as well.
First, notice that Guantanamo is still open
Think back to the cases that the Bush administration lost in the Supreme Court regarding Guantanamo detainees. At each loss, the end result affirmed that Guantanamo detainees had more rights:
- Losing Rasul v. Bush in 2004 meant that detainees could take their cases to court. This is what opened it up to the lawyers.
- Losing Hamdan v. Rumsfeld in 2006 meant that all Guantanamo detainees were entitled to Common Article 3 of the Geneva Conventions (before that, only the Taliban members had it).
- Losing Boumediene v. Bush in 2008 meant detainees could take their cases to court after Congress had tried to take it out of the courts’ hands. The end result also had federal judges review each case.
Each of these cases was a loss. It was usually close. Most of them had lower courts agree with the Bush administration, only to be reversed by the Supreme Court.
But note what didn’t happen: Guantanamo was not closed. Each ruling had the Court agree with the concept that detainees may be held without trial until the end of the war. (They even said so.)
What about habeas corpus? All that means is that a judge can review the case. As I just said, detainees won that in 2008.
And note as well that the Court didn’t give them POW status either. (This is probably worth a future post.)
Two standards of proof
Some people think we can’t charge detainees with crimes because they were tortured. Well, it’s only arguable in a few cases that some were tortured (and usually because of mistakes). Even so, nobody got it worse than KSM, and we’re still putting him on trial. (He tried to plead guilty but he rescinded his plea after President Obama took office.)
A bigger issue is the evidence required to try someone, as compared to that required to detain them during a war. The Guantanamo detainees have had tribunals requiring only a-preponderance-of-the-evidence. (This was based on an Army manual written long before the Bush administration.) But an actual trial requires beyond-a-reasonable-doubt. I know the critics would like to whine here but it’s not worth it. I said it’s a bigger issue. It’s not the main issue.
The main issue
This might surprise a lot of people, but it is simply not against U.S. law for a citizen of another country to be an enemy of the U.S.
There may be some charges possible, but trying someone for membership in Al Qaeda is simply not worth it. For most of them, if there is a crime to charge them with, their sentences could have been over by now.
Not only are we still at war, so are they.
An official source
But you really want an official source. I quoted the report by President Obama’s own Guantanamo Review Task Force in my Guantanamo Clarity and it’s worth posting here. I’ll put the link at the bottom.
The Task Force concluded that for many detainees at Guantanamo, prosecution is not feasible in either federal court or a military commission. There are several reasons for these conclusions.
First, the vast majority of the detainees were captured in active zones of combat in Afghanistan or the Pakistani border regions. The focus at the time of their capture was the gathering of intelligence and their removal from the fight. They were not the subjects of formal criminal investigations, and evidence was neither gathered nor preserved with an eye toward prosecuting them. While the intelligence about them may be accurate and reliable, that intelligence, for various reasons, may not be admissible evidence or sufficient to satisfy a criminal burden of proof in either a military commission or federal court. One common problem is that, for many of the detainees, there are no witnesses who are available to testify in any proceeding against them.
Second, many of the detainees cannot be prosecuted because of jurisdictional limitations. In many cases, even though the Task Force found evidence that a detainee was lawfully detainable as part of al-Qaida — e.g., based on information that he attended a training camp, or played some role in the hierarchy of the organization — the Task Force did not find evidence that the detainee participated in a specific terrorist plot. The lack of such evidence can pose obstacles to pursuing a prosecution in either federal court or a military commission. While the federal material support statutes have been used to convict persons who have merely provided services to a terrorist organization, e.g., by attending a terrorist training camp, there are potential limitations to pursuing such a charge against the detainees.
Notably, the principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainee was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum, as described above.
*  Among these limitations: First, the two relevant statutes — 18 U.S.C. §§ 2339A and 2339B — were not amended to expressly apply extraterritorially to non-U.S. persons until October 2001 and December 2004, respectively. Thus, material support may not be available as a charge in the federal system unless there is sufficient evidence to prove that a detainee was supporting al-Qaida after October 2001 at the earliest. Second, the statute of limitations for these offenses is typically eight years (see 18 U.S.C. § 3286), which may bar prosecution for offenses that occurred well before the detainee’s capture. Third, because the statutory maximum sentence for material support is 15 years (where death does not result from the offense), sentencing considerations may weigh against pursuing prosecution in certain cases. Some of these considerations would not apply to material support charges brought in the military commissions; however, the legal viability of material support as a charge in the military commission system has been challenged on appeal in commission proceedings.
The full report by the Guantanamo Review Task Force is available here. This excerpt can be found on the report’s pages 22 and 23; which are 26 and 27 of the PDF file itself.