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Obama Adminstration Urges Civilian Trials Remain an Option for Detainees

By Jeralyn

Jeh Johnson, the General Counsel for the Department of Defense, is urging Congress not to rule out civilian trials of detainees.

Jeh (Jay) Johnson said a Republican bill to virtually remove the civilian option would make it more likely that courts would step in when detainees challenge their detentions. He testified Thursday before the House Armed Services Committee.

Carol Rosenberg at the Miami Herald has much more on new Republican efforts to prevent closing Gitmo:

But the focus was the Republican draft legislation that would further thwart Obama’s efforts to close the detention center in southeast Cuba. It also would give the defense secretary rather than the attorney general final say on keeping a detainee in military custody. The bill imposes such tough requirements on transfers of the last Guantánamo captives that Defense Secretary Robert Gates has said he might not be able to approve any release.

Best line from the hearing:

They turn Guantánamo Bay into the Hotel California,” said the top Democrat on the committee, Washington Rep. Adam Smith. “You can check out any time you want but you can never leave.”

[More...]

As for the 9/11 detainees, Johnson testified today no decision had yet been made. Also,

[Deputy Defense Secretary William] Lynn said in response to a question that he believed it was up to the Executive Branch of government — not Congress — to decide what kind of trial each Guantánamo captive might get. Johnson said that the Obama administration was still “divvying up” the prosecutable Guantánamo captives between civilian and military courts.

Meanwhile, IL Governor Pat Quinn and Sen. Dick Durbin are asking Obama for written confirmation that Thomson Correctional Facility won't be used to house Guantanamo detainees before Illiniois signs off on selling Thomson to the feds.

Do we really need to spend $180 million for another prison? I hope Illinois gets stuck with the albatross.

I'm also seeing on Twitter today that Republicans are (belatedly)outraged that the Obama Administration is seeking fairer treatment for detainees. On March 7, Secretary of State Hillary Clinton wrote this letter to Congress:

Today we are informing the Chair and Ranking Member of the Senate Foreign Relations Committee that we intend to seek, as soon as practicable, Senate advice and consent to ratification of the Additional Protocol II to the 1949 Geneva Conventions, which elaborates upon safeguards provided in Common Article 3 and includes more detailed standards regarding fair treatment and fair trial.

.... The second step we are taking is to declare that as of today, the United States, out of a sense of legal obligation, will adhere to the set of norms in Article 75 of Protocol I in international armed conflicts. Article 75 sets forth humane treatment and fair trial safeguards for certain persons detained by opposing forces in international armed conflict and was praised by President Reagan's Joint Chiefs of Staff as "militarily advantageous insofar as it might make mistreatment of captured U.S. military personnel more difficult to justify in future conflicts."

Clinton concludes with:

These steps we take today are not about who our enemies are, but about who we are: a nation committed to providing all detainees in our custody with humane treatment. We are reaffirming that the United States abides by the rule of law in the conduct of armed conflicts and remains committed to the development and maintenance of humanitarian protections in those conflicts.

The Right is claiming this threatens our national security. It seems to me Obama is finally trying to get around Congress, which has pretty much tied his hands. Too bad he has to fight those in his own party, like Durbin, who should be on his side. Durbin apparently cares more about losing re-election votes than he does his principles.

On the other hand, as Marcy Wheeler points out, this recent DOD "protective order" regarding military commission trials has some remarkably unfair components, including:

Statements of the detainee that detainee’s counsel acquires from classified documents cannot be shared with the detainee absent authorization from the appropriate government agency authorized to declassify the classified information.

Marcy has an update here.

So on the one hand, Obama is not caving in entirely, but on the other, he's still allowing the unfair military commission trials and indefinite detention.

I think Obama should just announce the 9/11 defendants will be tried in federal court. The court should conduct a videotaped arraignment with the detainees and their lawyers at Guantanamo to get the speedy trial clock ticking. When the detainees aren't transferred here for trial because Congress has banned funding for it, the detainee defendants' lawyers can argue speedy trial violations and get the charges dismissed. With no military commission proceeding charges pending, the detainees should be deported back to their home countries. Let's see how Congress likes being blamed for the alleged 911 mastermind being sent home to Pakistan. (Yes, I'm sure there are a lot of technical reasons this can't happen, but that's not the point. The point is the Obama Administration and Justice Department should be thinking outside the box of ways to stick it to Congress on this issue.)

Full post as published by TalkLeft on March 17, 2011 (boomark / email).