Time to get back to a system of laws

It's becoming apparent that many of the Guantanamo inmates will be getting away with no more punishment than time already served. Not only are many of the confessions tainted by torture (and therefore inadmissible), a new problem has come to light: thanks to incompetent record-keeping, we just don't have any evidence. And in the end, if you can't make a case, you can't prosecute.

At this point, it's difficult to ascertain why this situation came about. The command staff at Guantanamo may have been overwhelmed by the array of duties that they were being called upon to perform, they may have had no experience at the job and simply bungled it, or they may have assumed that the military courts would simply hand down "guilty" verdicts without actually considering the evidence.

In the words of one former prosecutor (.pdf) who resigned in disgust:

Similarly, neither OMC-P nor CITF maintained any central repository for case files, any method for cataloguing and storing physical evidence, or any other system for assembling a potential case into a readily intelligible format that is the sine qua non of a successful prosecution. While no experienced prosecutor, much less one who had performed his or her duties in the fog of war, would expect that potential war crimes would be presented, at least initially, in "tidy little packages," at the time I inherited the Jawad case, Mr. Jawad had been in U.S. custody for approximately five years. It seemed reasonable to expect at the very least that after such a lengthy period of time, all available evidence would have been collected, catalogued, systemized, and evaluated thoroughly -- particularly since the suspect had been imprisoned throughout the entire time the case should have been undergoing preparation.

Instead, to the shock of my professional sensibilities, I discovered that the evidence, such as it was, remained scattered throughout an incomprehensible labyrinth of databases primarily under the control of CITF, or strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks vacated by prosecutors who had departed the Commissions for other assignments. I further discovered that most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty. The state of disarray was so extensive that I later learned, as described below, that crucial physical evidence and other documents relevant to both the prosecution and the defense had been tossed into a locker located at Guantanamo and promptly forgotten. Although it took me a number of months -- so extensive was the lack of any discernible organization, and so difficult was it for me to accept that the US military could have failed so miserably in six years of effort -- I began to entertain my first, developing doubts about the propriety of attempting to prosecute Mr. Jawad without any assurance that through the exercise of due diligence I could collect and organize the evidence in a manner that would meet our common professional obligations.

Although certain pundits are pushing the "61 who returned to terror" meme as a reason to keep them imprisoned, it's been easily debunked. (Of course, even if it were correct, their stated 11% recidivism rate is significantly lower than the Bureau of Justice statistic telling us that 67.5% of criminals released from US prisons are "rearrested for a felony or serious misdemeanor within 3 years.")

The Republicans, of course, are going insane about the upcoming closure of Gitmo, screaming about "what are we going to do with the TERRORISTS!?!?"

I'm not clear why this is a problem. There are federal facilities all over the place. It's time to just ignore the whining of the congresscritters, and stick them in there. (That's what "exclusive jurisdiction" means, after all — the state authorities don't have any pull in there unless they've been granted some.) If Brownback wants to complain, tell him to figure out where these boys would be welcome, which is already set up as a detention facility, and we can send them there.

In the meantime, tough. Stop knuckling under to the GOP, Obama — they're already proving to be classic Republican contrarians. Just roll over them, and let them get all stampy-feet angry for a while. It's not like they were planning to agree with you any time in the near future anyway.

Once the Guantanamates are safely stowed away, you can give them the trial that they've been denied so far (not that that's going to be an easy matter, of course, since the policies of the Bush administration has made many of them unindictable).

Trial outcome? Easy stuff. If it's determined that they're guilty and sentenced, they take the punishment. If not, we drop a moderately fat check on them, and send them back to their country of record, or to a third country, if necessary. If we don't even give them a chance to settle in the USA, it defuses the arguments of the unhinged right.

All Obama needs to do is fix each problem as it comes up, and move on. Call it the Whack-A-Mole Theory of Governance.