Commentary Magazine


Toobin on Gitmo

Jeffrey Toobin has a pretty good overview in the current issue of the New Yorker of the whole issue of Guatanamo and the handling of terrorist detainees–especially useful for those like me who have not followed the issue super-closely. Two points in particular jumped out at me.

1) “But, in 2004, the Supreme Court ruled, in Rasul v. Bush, that, because the Guantánamo base was under the exclusive control of the U.S. military, the detainees were effectively on American soil and had the right to bring habeas-corpus petitions in federal court.”

This is something that conservative critics of John McCain don’t seem to have grasped–that, rightly or wrongly, the Supreme Court has already conferred rights on detainees at Gitmo and they probably won’t gain any more rights simply by being transferred to the mainland, as McCain has proposed. (Full disclosure: I am a foreign policy adviser to the McCain campaign.)

2) Neal Katyal and Jack Goldsmith–a liberal and a conservative law professor–have come up with an idea for trying detainees: “a national-security court:”

According to their proposal, which was recently the subject of a conference sponsored by American University’s Washington College of Law and the Brookings Institution, sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained. There would be trials of sorts, and detainees would have lawyers, but they would have fewer rights than in a criminal case. Hearsay evidence may be admissible-so government agents could testify about what informants told them-and there would be no requirement for Miranda warnings before interrogations.

This seems like an excellent idea and one that could address concerns that if detainees are moved from Gitmo they will be afforded all the same rights as normal criminal defendants.

Of course even beyond the issue of trials there is the equally vital issue of preventative detention: There is insufficient evidence against many of the Gitmo detainees to convict them in a court of law but sufficient evidence to hold them indefinitely because of the risk that if released they would go back to terrorism. Obviously this needs to be part of any longterm legal solution. But simply keeping them at Gitmo will not do anything to resolve this thorny issue–and all the while it will continue to cost us international support.