The latest news out of Gitmo is that President Obama’s efforts to delay existing cases have only been partly successful. It’s not clear what will happen, but it seems likely that some people who are guilty will go free.
Through all of it, the real problem, it seems to me, has not been malice, but incompetence.
The latest declaration by a former JAG prosecutor at Gitmo, this by Lt. Col. Darrel Vandeveld, talks about the lack of central prosecution files. Vandeveld, by his own declaration, doesn’t appear to have been as alarmed as one might be over that, until he began to have doubts about the merits of his cases.
The declaration is filled with inflammatory language that belongs in an argument, not a factual declaration. But the underlying issue – that comprehensive files just weren’t kept, and that the things you’d want in a prosecution file are scattered to the four winds – is absolutely alarming.
These accusations appear to be bolstered by other declarations – Lt. Col. Stephen Abraham said similar things in his declaration; he was working as a defense attorney.
Obama’s people supposedly “discovered” this problem when they came into office, but there had been public allegations of this sort of thing before.
This isn’t an issue of politics. This isn’t an issue about who should, or should not be held. This is, straight-up, an issue about competence.
In a prosecutor’s office, here’s what happens, in theory: We get all the information, and put it in a file. On big cases, our office PDF’s the files and sends everything we have (videos, audios, transcripts, statements, police reports) out on disc. The cops have copies of the stuff they generate, and we have copies of everything. The physical evidence (like, say, shotguns) are kept in evidence by the cops. The prosecution or defense can come look at it.
In multi-agency situations, where we have reports from many places, we still collect everything. We don’t have the kind of security issues that Gitmo has; we very rarely withhold or redact evidence. (We are sometimes legally required to do so; that gets documented. In some cases, we notify the defense of the steps they need to take to get us to be able to release the evidence.)
If you want to have prosecutions, you have to have proper case files. In this sort of situation, you’d disclose to the defense what you legally could and keep a privilege log of those things you couldn’t.
And when you don’t, and you need a delay because, well, you have no freaking clue what’s going on, the judge will be predictably grumpy. This failure, I think, is one of the key reasons why the detainees have included some number of people who are not guilty of the crimes alleged, and why some terrorists will go free.
So, now’s the time to do the right thing: Assemble case files. Make viable cases against people who murdered Americans. If you can’t make those files, those people are going free. That’s an affront to the dead, and to the living. And all because no one cared enough to do some work that was primarily clerical and organizational in nature.
Am I wrong on this? What do you think?