Legally Dubious and Extremely Dangerous

The Obama administration is getting us ready for a transfer of Gitmo terrorists to U.S. prisons by pointing out that we already house terrorists in our prisons without any problems and that critics of moving these prisoners to the U.S. are just engaging in more politically motivated fear mongering.

But David Rivkin and Lee Casey, writing on the Wall Street Journal op-ed page, note that the terrorists held in U.S. prisons today are convicted criminals, not enemy combatants who cannot be tried in American courts, and that holding such people in the United States is legally dubious and thus extremely dangerous in that a judge has the power to order their release.

An excerpt:

…the legality of incarcerating captured terrorists in U.S. domestic prisons is far from clear. Today the Guantanamo detainees are held under well-established laws of war permitting belligerents to confine captured enemies until hostilities are over. This detention, without the due process accorded criminal defendants, has always been legally justified because it emphatically is not penal in nature but a simple expedient necessary to keep captives from returning to the fight. It was on this basis that the Supreme Court approved the detention of war-on-terror captives, without trial, in Hamdi v. Rumsfeld (2004).

The Guantanamo detainees are “unlawful” enemy combatants and not “prisoners of war” under the Geneva Conventions. Yet they are still combatants, not convicts. By contrast, the individuals held in the federal prison system, and especially those in the maximum security facilities suggested for the Guantanamo detainees, are convicted criminals.

It is very doubtful that under the customary laws and customs of war, the Hamdi decision, or Common Article 3 of the Geneva Conventions (which the Supreme Court also has applied to the war on terror) the Guantanamo detainees can be treated like convicted criminals and consigned without trial to the genuinely fearsome world of a super-max prison.

Segregating the detainees from the overall prison population — to maintain the “non-penal” character of their confinement as well as to frustrate any recruiting activities or continuing al Qaeda operations — is also legally dubious. Unless a new Guantanamo is to be constructed, this segregation will have to take place in existing isolation wards used to discipline (and sometimes protect) federal inmates.

This could mean solitary confinement, perhaps for 23 hours a day, without regard to a detainee’s conduct or disciplinary status. The chances that courts would consider this to be the “humane” treatment required by the Geneva conventions are not overwhelming.

The Obama administration can be certain these conditions will be challenged in the courts, and it is difficult to see how, in light of current judicial attitudes, the detainees will be denied the entire panoply of constitutional rights claimed by ordinary inmates — including lawsuits challenging their conditions of confinement. If courts conclude that these conditions are unconstitutional, or that they cannot be held indefinitely as enemy combatants, judges could mandate the release of these jihadists into the U.S. …

But what is there to fear from these innocent shepherds?

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