Hopeful Change Down Guantanamo Way


After a Sunday ABC News appearance made Obama critics pissed that he seemed to be equivocating on a swift end to the detention center at Guantanamo Bay, now it's leaked that he will at least sign the order to close on day one. But

it is likely to take many months, perhaps as long as a year, to empty the prison that has drawn international criticism since it received its first prisoners seven years ago this week. One transition official said the new administration expected that it would take several months to transfer some of the remaining 248 prisoners to other countries, decide how to try suspects and deal with the many other legal challenges posed by closing the camp.

The Washington Monthly is scabrous on one of those "legal challenges," that is, can we in fact rely on standard courts to deal with these prisoners, now that the "military commissions" system is probably going to be immediatley nixed? Should a new "hybrid" system be developed, as an AP story speculates? The crux of the problem, says the Monthly:

…..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…..

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….

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.