The Persistence of Gitmo

I saw a GOP talking head last night on some show say that Obama's recent decision to keep military tribunals was an implicit endorsement of the turd's war on terror. This incredibly ill-founded statement caused me great consternation: apparently enough to motivate me to break my blog silence of late. So I'd like to set a few things straight. You know, for the reasonable people out there.

One of Obama's first acts as president after his inauguration, was to announce the closure of Gitmo within one year. For those of us who have thought (and said) since its inception that Guantanamo was this country's most tragically embarrassing rejection of the rule of law in recent history, this came as welcome news.

So what to make then of what has been termed Obama's "back tracking" on this issue?

A few points.

First, even those who feel as I do cannot honestly say that Guantanamo should be shut down immediately. Others have been charged, but have not had any sort of preliminary hearing. There are also detainees (about 60 or so last count) who have been cleared of all charges, but who cannot be returned to their native countries because of likelihood of torture. This is an affirmative obligation that the United States has under international law. So in a slightly ironic way, international law is preventing the immediate closure of Gitmo. You can't just hit the "off" switch on Gitmo and walk away. The previous administration has left quite a legal limbo laden quagmire to sort through.

Many are also concerned about Obama's decision to reinstate military tribunals. This was not a total surprise since he called for a 120 days suspension of prosecution, so it was not unforeseeable that after such time, they might begin again (although they are not actually beginning again, since he announced a new 120 day suspension, pending changes to the tribunals). However, he has changed some of the more egregious rules, such as:

First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial. Second, the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability. Third, the accused will have greater latitude in selecting their counsel. Fourth, basic protections will be provided for those who refuse to testify. And fifth, military commission judges may establish the jurisdiction of their own courts.
From White House Press Statement.

So the playing field has been leveled, to some extent (don't ask how #5 will work because I have no idea). Will this be the same as an Article III court? No. Of course not.

Much more than a democrat, I am an advocate of the rule of law. I think our rules of evidence and procedure (that are used everyday in our own criminal courts, such as the one that convicted one Timothy McVeigh) are the best tools we have to sort out the guilty from the innocent. So is it disappointing? Yes. Is it an implicit endorsement of the turd's war on terror? Hardly, and no more so than cleaning up after an oil spill is an endorsement of the oil spill.

I think some version of the existing tribunals will be necessary. Republican congressmen have made it very clear that they will oppose any changes that will mean the detainees will be housed in maximum security prisons within the United States. So this will make access to regular Article III courts somewhat difficult, given that the turd decided to put his kangaroo court on a fricking island. I guess their fear is that the acquitted detainees might be freed and walk around Main street USA.

Since that what acquitted people do.

And the Senate just rejected the money requested by the administration to shut Gitmo down.

So what to do? Here's what I think. Keep the tribunals, but import material provisions of Federal law, e.g. Federal Rules of Evidence, Criminal Procedure. No NIMBY problem, and you will now have all of the safeguards of US law. All those acquitted get to go live in Crawford Texas.

Problem solved.

Here is a much better post on all the things wrong with the tribunals that will remain wrong.

Plaintiffs' Bar Receives SetBack in Camel Jockey Case

In early June, a class-action lawsuit was filed in Florida against certain sheiks from the United Arab Emirates, accusing them of kidnapping and enslaving children and forcing them to ride camels (WSJ lawblog article). The case was brought under the Alien Tort Statute ("ATS"), which gives U.S. federal courts jurisdiction to hear cases brought by anyone, including foreign nationals, for injuries “in violation of the law of nations or a treaty of the United States.” For a whole discussion on the ATS, see anything written on the subject by Bill Dodge, or the Opinion Juris Discussion of the ATS and the last big SCOTUS case addressing it. The case brings up a slew of novel and interesting questions for those of us at all interested in international law, including head of state immunity, forum non conveniens, and international comity. This seems to be the plaintiffs' bar's first foray into human rights law, and not everyone was pleased with it. As Bill Dodge was quoted in a New York Time's article:

“It’s a bad thing that the class-action firms are getting into this area,” William Dodge, a law professor at Hastings Law, told the Times. “They don’t know as much about international law, and they don’t pick their battles as carefully. They’re motivated not just by a concern to promote human rights but also by money and a desire to use these kinds of suits to get a settlement.”

The UAE actually set up a whole media-ready website in response, called "dubaicameljockeys.org"

On July 30, 2007, the judge dismissed the case for a lack of personal jurisdiction (both under Florida's and the federal long arm statute) , thus avoiding some of the trickier questions that would have otherwise arisen. Seems the Sheiks did not have many meaningful contacts with the Sunshine state and the Court did not find plaintiffs' allegations that some corporations doing business in Flordia were the alter egos of the Defendants to be very convincing. While a win for the sheiks, this does not foreclose future litigation of this sort.

I think it would have been interesting to see how the court would have handled the accusation that the children were enslaved. The Sosa decision mostly limited the causes of action under the ATS to only those three that were unequivocally intended to be enforced at the time of the ATS's adoption in 1781: violating safe conduct, infringing the rights of ambassadors, and piracy. But the majority opinion did say that it would be willing to apply the statute to other, more modern concepts:

Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.

Surely slavery would fall under this definition, wouldn't it?