Closing Guantanamo: Part 2

From the AP story on closing Guantanamo:

“What remains the thorniest issue for Obama, the advisers said, is what to do with the rest of the prisoners — including at least 15 so-called “high value detainees” considered among the most dangerous there.

Detainees held on U.S. soil would have certain legal rights that they were not entitled to while imprisoned in Cuba. It’s also not clear if they would face trial through the current military tribunal system, or in federal civilian courts, or though a to-be-developed legal system that would mark a hybrid of the two.”

I think that designing a new “hybrid” legal system would be a big, big mistake. Some of the reasons are practical. For instance, the system of military commissions has been litigated for years, which is one reason why so few people have been tried under it. Any new system would be challenged in court as well. If we try detainees under an existing system of law, we can be pretty sure that most of the constitutional questions it raises have been worked out. If we build a new system, we can be equally sure that we’d have to wade through years of legal challenges before anyone actually got to be tried under it.

We have already held people without trial for seven years. Their children have grown up without them. We need to bring them to trial quickly or let them go. The delays inherent in constructing a whole new system of justice would, under the circumstances, be unconscionable.

More importantly: the time to construct a new system is when events reveal the need for one. That is not the case here. We have not suddenly discovered that there is some gap in our existing system of justice that only a new, alternative system will fill. Rather, there are people we want to detain and might not be able to detain under the existing system, in large part because those clever people in the Bush administration decided to torture them. Jameel Jaffer and Ben Wizner in Salon (h/t Glenn Greenwald), discussing an argument by Benjamin Wittes:

“Wittes is more candid than many other advocates of expanded detention authority in explicitly revealing a major source of his concern: that the evidence necessary to obtain convictions against some terrorism suspects is “tainted by coercion” and thus inadmissible in U.S. federal courts. In congressional testimony and in a recent Washington Post article, Wittes pointed to Mohamed Al Qahtani, a Guantánamo detainee, as the paradigmatic profile of an individual whose legitimate prosecution may be fatally compromised by coercive treatment, but whose release would pose too great a menace to Americans. (…)

Assuming, as Wittes does, that there is no evidence of Qahtani’s involvement in criminal conduct that is untainted by the government’s criminal conduct toward him — something that is by no means clear — his case squarely presents the question whether we are prepared to change our laws in order to avoid the consequences of the Bush administration’s criminal embrace of torture. Wittes’ argument can be summarized succinctly as follows: 1) We brutally tortured Qahtani; 2) thus, our evidence of his criminality is “tainted,” rendering his prosecution impracticable; 3) therefore, we must amend our laws to allow for Qahtani’s indefinite detention without charge or trial.”

This is a terrible reason to create an alternative legal system. A legal system is not a one-off thing. It goes on existing after the particular cases that prompted its creation have been settled. This proposed legal system would be created to allow the prosecution and conviction of people based on evidence gained through torture. There are at least two huge problems with doing this:

(1) Evidence gained through torture is unreliable. That’s one reason we don’t rely on it to begin with. If there is not enough evidence to convict someone once we eliminate evidence gained through torture, then there is not enough good evidence to convict him, period.

(2) One of the ways in which we protect ourselves from torture is by making it clear that evidence gained through torture is inadmissible in court. Creating an alternative legal system in which such evidence was admissible would create horrible incentives for law enforcement. This is particularly true since many terrorism statutes are broadly written. Consider this case:

“For the past three years, a 24-year-old construction worker named Edgar Morales has been in jail, awaiting trial on murder and terrorism charges that could send him to prison for life. Mr. Morales, however, does not belong to Al Qaeda or Hamas.

Instead, prosecutors say, he is a member of the St. James Boys, a group of recreational soccer players who formed a street gang that terrorized the Mexican and Mexican-American population of the west Bronx for several years and killed a 10-year-old girl in 2002. (…)

The Bronx district attorney, Robert T. Johnson, says the law is an apt tool in his effort to prosecute violent street gangs.

“The obvious need of this statute is to protect society against acts of political terror,” Mr. Johnson said in a statement. “However, the terror perpetrated by gangs, which all too often occurs on the streets of New York, also fits squarely within the scope of this statute.””

This case concerns a state statute, but the relevant part of it — defining terrorism as acts that violate the law and are intended to “intimidate or coerce a civilian population” — is also found in federal law. This means that a lot could count as terrorism in the hands of a creative prosecutor, and if, in all such cases, an alternate legal system was available in which evidence gained through torture was admissible, that would have huge implications.

This point applies more broadly. Whatever form a novel legal system takes, if it is designed to deal with Guantanamo detainees, it will almost certainly be designed to make it easier to convict people. Before constructing such a system, we need to ask ourselves whether we want prosecutors to have, in a range of cases that is certainly broader than what we normally think of as terrorism, the option of using an alternate system designed to make it easier to convict, and to do so when the government has not been playing by what used to be the rules.

I think it’s a terrible idea. We have an accepted way of dealing with people whom we do not have enough untainted evidence to convict: we release them. Some of the people we release are guilty, and some are very dangerous: mafia bosses, murderers, rapists, people who beat up their spouses or molest their children. We have always thought that maintaining our commitment to the rule of law meant that despite these dangers, we should not lock people up if we don’t have evidence against them that’s admissible in court. That’s what decent societies do.

It would be a tragedy if we abandoned that commitment.