Patterico's Pontifications

1/31/2009

Guantanamo – What Next?

Filed under: General — JRM @ 2:22 pm

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?

61 Responses to “Guantanamo – What Next?”

  1. I think you asked and answered your question about why they appear to be so disorganized and unprepared. “If you want to have prosecutions…” They didn’t want to and really hoped that it would not come to that. I’m pretty sure that they are also snarled up in their usual security clearance snafu. I can see the Intel types reacting in horror at the idea of giving some blabbermouth JAG access to his tip top secret code word files so he can use them to prepare a case and, potentially, share it all with the attorneys representing the accused. Quell horreur!

    Curtis (e21caf)

  2. I think you nailed it.
    I have not been to Gitmo but I would imagine that given the tendency for the media to demand “fair and humane treatment” many of the lawyers involved spent a lot of time working CYA issues caused by this demand. There are only so many hours in the day and the things the lawyers wanted to do such as build a case become second priority. Again only my opinion as to why some of the files were lost or improperly followed up.

    voiceofreason2 (4bb1ae)

  3. Maybe Obama could have a sit-down with the detainees.

    He could listen to their concerns, then make his case directly to them. After a little back-and-forth and some [virgin] cocktails, the detainees could all go back home, stripped of their ideological vigilance and will to fight. Hey, it worked on Krauthammer!

    Randy Sexer (94b70a)

  4. I don’t think you are wrong given the current state of affairs…but is the situation that you described much more a consequence of after-the-fact rule- and status-changing rather than incompetence?

    I mean, with limited exceptions, initially weren’t all detainees simply being warehoused until a legitimate ‘cessation of hostilities’ argument could be proffered?

    Then, as a political tool didn’t they then become P.O.W.s…who could be warehoused until a legitimate ‘cessation of hostilities’ argument could be proffered?

    …while only fairly recently they have become criminal defendants?

    With such a moving-target status, is it any wonder that the bureaucratic apparatus operating in the back-offices of EVERY criminal prosecution lagging behind the administrative curve here?

    MikeN

    MJN1957 (6e1275)

  5. A couple of the military lawyers sound pretty weak, too. I don’t what kind of people become JAG officers but Senator Lindsey Graham comes to mind.

    Mike K (2cf494)

  6. They’re not criminal defendants, they’re unlawful combatants. All that needs to be established is that they were carrying arms on a battlefield without adhering to the GC requirements for a lawful combatant.

    Rob Crawford (b5d1c2)

  7. Mike K:

    I’ve known several JAG’s. Almost every one I’ve known has been a wonderful person and lawyer.

    Rob Crawford:

    There has to be, at least, an administrative remedy. If you’re not centralizing the investigation of the combatants somewhere, how do you know what you have? Even if you were never prosecuting anyone, that seems like facially incompetent intelligence-gathering to me, no? Wouldn’t you want more detail on terrorists?

    I don’t claim to be an expert in this field, so I definitely appreciate the comments here.

    –JRM

    JRM (355c21)

  8. Comment #6 hit the nail on the head.
    When the hostilities in Afghanistan have ended, then those collected on the battlefield should be freed. Those collected outside Afghanistan should be evaluated as to their situation at time of capture. If they were waging war against America or its allies, then they, too, should be freed when hostilities are ended.

    It is not our fault that hostilities are continuing, thereby necessitating the retention of those combatants.

    jpickens (8b5ad5)

  9. Look all this navelgazing about Gitmo is because the public relations campaign to make them into innocents, and demonize American military and intelligence officials, financed by Saudi, Qatari and Kuwaiti interest through the blue chip Wall Street, State Street and K Street firms worked.
    We’ve seen every one of these attorneys excuse the reason why their clients ended up there, and rationalize why they were later caught in Morocco, or Nalchik Russia, or blowing themselves up in Mosul.

    narciso (ce69ff)

  10. 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.

    I agree completely with the first sentence and disagree completely with the rest. These are prisoners of war (In the vernacular, not the strictly legal sense. In that sense they’re really less than that.) and trying to prosecute a war with filings and a gavel is insanity. It is indeed an matter of who should and should not be held and the only incompetence is in failing to recognize that. War is about breaking (enemy) things and killing (enemy) people in order to achieve an objective. It is not about preparing criminal prosecutions, nor should it be.

    Pablo (99243e)

  11. Amen, Pablo.

    JD (2aa114)

  12. After their initial interrogations in the field, they should have been shot, in the field, under those provisions existing in the GC.

    The problem could have been ended before it became a problem.

    AD (7c0940)

  13. I suspect that after the year of “study”, that Guantanamo itself will close but the prisoners will be moved to other locations in the middle east and the MSM will let the issue die away as nothing substantive changes.

    That Obama is going to continue “rendition” is clue enough that all the “change” is window dressing.

    SPQR (26be8b)

  14. More evidence of that “empty suit”.

    AD (7c0940)

  15. After their initial interrogations in the field, they should have been shot, in the field, under those provisions existing in the GC.

    Which is what will happen from now on – when in doubt, blow their heads off instead of reciting Miranda to them. That will be the direct consequence of this hollow debate.

    Dmac (2fab96)

  16. I know that the status has changed, but I can’t get past the apparent fact that there aren’t centralized ways to look at each person held.

    I’m not looking for these folks to be tried in the US. And, again, the method of review may be different depending on the circumstances. But indefinite prisoners of war, when we’re not on a battlefield, ought to be justifiable with some showing.

    The fact that even after prosecutions started, and it has been clear for a long time now that there would be prosecutions, no files were arranged seems facially incompetent to me, still.

    –JRM

    JRM (355c21)

  17. SPQR – Rendition is okay when a Dem does it. Dontcha know?

    JD (2aa114)

  18. I’m seeing a weird divergence here – on one hand, kill-em-all-and-let-dog-sort-them-out, and on the other the idea that torture is good, but for that to work, you need a live person to torment.

    I also find it strange that law and order types are disagreeing with the consummate law and order Patterico. We have rules of evidence, procedure, and a history of law that has worked pretty well for us. Why is this threat so different that we have to throw all of that under the bus?

    fishbane (4b8100)

  19. I’m seeing a weird divergence here

    The divergence is probably caused by your own skewed view of reality (hey, aren’t you the guy who couldn’t tell the difference between CBS News and Cybercast News Service?).

    – on one hand, kill-em-all-and-let-dog-sort-them-out, and on the other the idea that torture is good, but for that to work, you need a live person to torment.

    First, no one here has argued that torture is good — that’s a fantasy you came up with all by yourself. Second, no one here has argued to “kill them all”; some have pointed out that killing unlawful combatants on the field of battle would be both A. legal under the GCs, and B. less subject to political and media manipulation than the captures have been.

    I also find it strange that law and order types are disagreeing with the consummate law and order Patterico.

    You’ll have to pop back over to one of the lefty hives if you’re looking for an echo chamber that enforces conformity. Polite disagreement has always been tolerated here. The “law and order types” in this thread are pretty much advocating following the “law” of the Geneva Conventions regarding unlawful combatants.

    JRM’s (note: he is not Patterico) post and commentary is about the competence of the prosecution in coordinating the evidence they have against these prisoners. The viewpoint “these prisoners are not entitled to a trial under the GC” and JRM’s advocacy that “since these prisoners are likely going to trial regardless of the GC provisions, the prosecutors should have made sure they had their ducks in a row” are not mutually exclusive.

    We have rules of evidence, procedure, and a history of law that has worked pretty well for us.

    Yes, we do have fairly well established precedent and treaty covering the treatment of out-of-uniform unlawful combatants; that treatment has historically involved a quick military field trial and execution. Lawful combatants have been held — without trials — until the cessation of hostilities.

    Why is this threat so different that we have to throw all of that under the bus?

    I’m not sure why some people feel the threat is so different that we should ignore both the provisions of the Geneva Conventions as well as historical precedents regarding captured prisoners. Since you seem to feel that way, perhaps you can explain why people think this threat is so unique that we should throw the GC and those precedents under the bus, and instead insist those prisoners are entitled to the same panoply of legal rights that peaceful U.S. civilian citizens have.

    Shad (8470b0)

  20. fishbane, you seem ignorant of the fact that throughout American history, until just the last couple of years, the recognized procedure for such unlawful combatants was to shoot them out of hand or after a drumhead military trial. The idea that we ever had any elaborate rules of evidence or procedure for such is an utter falsehood.

    SPQR (26be8b)

  21. But that is different, SPQR! There is a different letter associated with the policy makers. It is “D” this time, so it is not torture and poor strategy, it is a muscular and assertive response to individuals not following the Geneva Conventions themselves, engaged in threats against American personnel.

    Teh Narrative continues. Just like the New Reality regarding lobbyists in the Obama White House, tax evaders in high government offices, people who free terrorists as AG, and so forth.

    Hope and Change!

    Eric Blair (53ab22)

  22. “But that is different, SPQR! There is a different letter associated with the policy makers. It is “D” this time, so it is not torture and poor strategy,”

    You like to assume that Obama supporters are as unprincipled as you are, and as uncomfortable criticizing people on their own side of the line. Of course some democratic supporters have knee-jerk reactions, and want a hero to save them from themselves (and remove them from any obligation to think) but many (the majority if only slim) are more interested in policy than policy-makers. The notion that people should be willing to vote for McCain while not worshipping the ground he walked on seemed to be a radical thought among Republicans.

    “This isn’t an issue of politics.”
    Of course it is. The Bush administration had a long publicly documented record of preferring loyalty to competence.

    sleepy (09c352)

  23. sleepy, I don’t have to assume that Obama supporters are “unprincipled” ( by your faux comparison ), we already know that they are from their actions. Actions you have failed to address at all.

    But that’s not the first clue of your trollish nature.

    SPQR (26be8b)

  24. Every time I see sleepy in the sidebar, I just know that a blizzard of idiocy will follow. It never disappoints.

    JD (cdacef)

  25. “I also find it strange that law and order types are disagreeing with the consummate law and order Patterico. We have rules of evidence, procedure, and a history of law that has worked pretty well for us. Why is this threat so different that we have to throw all of that under the bus?”

    fishbane – We have not used our criminal justice system as a primary enforcement tool for prisoners of war or war criminals captured overseas before, have we? Why should it be different this time. Obama, with his vastly overrated knowledge of history made an enormous gaffe on which he was not called when he referred to the Nuremberg proceeding as civil trials – no they were military tribunals with no niceties of appeal. It’s tough to understand why the left can’t discuss this subject honestly. There is no obligation to prosecute every prisoner in a conflict under the Geneva Conventions. If you find that provision, let me know.

    Expanding rendition is just an invitation to torture, which I’m sure the left will welcome with open arms. Freaking hypocrites.

    daleyrocks (5d22c0)

  26. Well, the trollery is always on display at Patterico’s blog, with:

    “…are as unprincipled as you are…”

    Nice.

    Hey, aren’t you the guy or whatever who was banned and used multiple identities here? Speaking of principles, I mean? I’ll leave out your recent flirtation with anti-Semitism (yes, yes, you are a Jew, I know). So you calling anyone else names is a bit rich.

    But this was either performance art or ignorance:

    “..The notion that people should be willing to vote for McCain while not worshipping the ground he walked on seemed to be a radical thought among Republicans…”

    Um. Other than all the websites that suggested conservatives “Get Drunk and Vote for McCain,” do you mean?

    And do you truly, honestly, expect anyone to take you seriously when you condemn “loyalty over competence” from GW Bush’s administration, when Obama is a Chicago politician?

    At least Bush’s people paid their taxes.

    C’mon. But then, it is hardly the first time you have posted this kind of nonsense.

    Eric Blair (53ab22)

  27. You like to assume that Obama supporters are as unprincipled as you are, and as uncomfortable criticizing people on their own side of the line.

    You had the opportunity to demonstrate this assumption was incorrect by criticizing Obama’s use of rendition the same way you did Bush’s.

    Instead, you chose to dissemble for a paragraph and then throw in a cheap shot at Bush with a juvenile Google-search-based accusation instead.

    And speaking of that cheap shot:

    Of course it is. The Bush administration had a long publicly documented record of preferring loyalty to competence.

    Comment by sleepy — 2/1/2009 @ 2:47 pm

    Bush + “loyalty over competence”: 604 Google hits.
    Clinton + “loyalty over competence”: 1650 Google hits.
    Obama + “loyalty over competence”: 1890 Google hits.

    Using this “sleepy standard” of evidence, it seems that Clinton and Obama prize “loyalty over competence” two to three times as much as the Bush administration did.

    Shad (8470b0)

  28. “The Bush administration had a long publicly documented record of preferring loyalty to competence.”

    sleepy – How many conservative opinions are there among that google search of opinions you generated? I know you usually don’t look at your own links.

    daleyrocks (5d22c0)

  29. You raise a good point. I was impatient, and sloppy.
    Still…
    “Obama + “loyalty over competence”: 1890 Google hits”
    From the first link that came up:

    Opinions: ‘They stood by their man’ by David Frum | Prospect …
    The Bush administration prized loyalty over competence. … In this, President Obama or McCain will be conforming to the most basic rule of presidential PR: …
    http://www.prospect-magazine.co.uk/article_details.php?id=10224 – 46k – Cached – Similar pages

    Google “Loyal Bushies”

    The Justice Department advocated in early 2005 removing up to 20 percent of the nation’s U.S. attorneys whom it considered to be “underperforming” but retaining prosecutors who were “loyal Bushies,” according to e-mails released by Justice late yesterday.
    The three e-mails also show that presidential adviser Karl Rove asked the White House counsel’s office in early January 2005 whether it planned to proceed with a proposal to fire all 93 federal prosecutors. Officials said yesterday that Rove was opposed to that idea but wanted to know whether Justice planned to carry it out.

    “How many conservative opinions are there among that google search of opinions you generated?”
    Here’s David Frum

    That early team was recruited with one paramount consideration in mind: loyalty. Theoretically, it should be possible to combine loyalty with talent, but that did not happen often with the Bush team. Bush demanded loyalty not to a cause or an idea, but to himself personally. He tested that loyalty with constant petty teasing, sometimes verging on the demeaning. (The journalist Robert Draper tells the story of a 1999 campaign strategy meeting at which Bush shut Rove up by ordering him to “hang up my jacket.” The room fell silent in shock—but Rove did it.)

    You can’t win this argument. You can’t win any argument by ignoring evidence, at least beyond a 4th grade schoolyard.

    sleepy (09c352)

  30. sleepy – if only you took your own advice about grade level.

    SPQR (26be8b)

  31. Consider the source” has all kinds of resonance in this particular thread.

    Eric Blair (53ab22)

  32. sleepy – WOW!!!! Those are incredibly damaging quotes. I especially loved the piece by noted conservative Joe Klein.

    daleyrocks (5d22c0)

  33. Of course we all know that Web Hubbell was put into the Clinton administration Dept of Justice because of his talent …

    SPQR (26be8b)

  34. Well, David Frum is Jewish so I’m pretty sure sleepy really likes that source.

    daleyrocks (5d22c0)

  35. Looks like he didn’t get much loyalty from Shrum, O’Neil, Iglesias, Kuo, Diulio, Clarke, Powell, Armitage, how’d all they get through. The serious point is that this Supreme Court, relying in part on bogus amicus briefs which misrepresented the long precedent on military tribunals and detention of enemy combatants, screwed up, not once but three times, and now we have the specter of these folks being freed to cause another atrocity.

    narciso (57971e)

  36. narciso – Don’t forget the part of the Congressional Record that was inserted after the fact that a few of the justices actually thought was part of the debate on the floor and relied on in determining the intent of Congress.

    daleyrocks (5d22c0)

  37. I was trying to forget that level of incompetence, but thanks for reminding me daleyrocks.

    narciso (57971e)

  38. The Geneva Conventions (GC) were codifications of practices of treatment of hostiles (enemy combatants and non-friendly civilians). Note the the GC were developed and signed after WWII.

    1. lawful combatants are not to be tried as criminals.

    2. lawful combatants may be held until hostilities are ended.

    3. lawful combatants, where charges of War Crimes exist, are not to be tried until after hostilities are ended.

    4. lawful combatants are not to be interrogated.

    5. unlawful combatants have no protections, they can be summarily executed.

    LarryD (feb78b)

  39. “5. unlawful combatants have no protections, they can be summarily executed.”

    mmm
    …No.

    sleepy (09c352)

  40. In sleepy’s world, the battlefield is a place for Miranda and defense attorneys.

    JD (54baf8)

  41. ROFL, Wikipedia as a source? My ribs are hurting.

    SPQR (72771e)

  42. You can’t win this argument.

    My strawman is made of stone! It is indestructible!

    AKA Pablo (99243e)

  43. more sources
    here

    It’s known as “Hamdan v. Rumsfeld,”
    It’s a sort of a well know case.
    Sort of.

    sleepy (09c352)

  44. Then it cites a case that has nothing to do with the “arguement” it was presenting. Brava, sleepy.

    JD (54baf8)

  45. And, FWIW, Hamdan has nothing to do with the fact that Baracky will be continuing rendition, which was tantamount to kidnapping and torture when Bush did it.

    JD (54baf8)

  46. I won. So I think on that one, I trump you.

    Pablo (99243e)

  47. “Baracky will be continuing rendition, which was tantamount to kidnapping and torture when Bush did it.”
    Rendition itself was not the problem
    A good discussion here, by Hilary Bok who understands these things more that you.
    I know it’s asking too much, but please, pay attention.

    Obama orders people to comply with the Convention Against Torture, and that Convention states that we cannot return people to states where there are substantial grounds to believe that they will be tortured. And nothing the Obama administration has done to date suggests to me that they would engage in the kinds of creative reading of legal documents that would allow them, say, to disregard Egypt’s long record of torture in making this determination.

    If he continues Bush’s policies, that will be a problem.

    sleepy (09c352)

  48. A reminder…
    The Convention Against Torture, is a law-enforcement agreement, not part of the Geneva Conventions on Warfare, and would not apply on the battlefield.

    AD (b72706)

  49. …and another thing:
    No Prisoners,
    No Problems!

    AD (b72706)

  50. “If he continues Bush’s policies, that will be a problem.”

    sleepy – What specifics do you know about Bush’s policies on rendition? Do you have special knowledge in this area? There was the case of the guy the Canadians asked us to send to Syria instead of allowing to reenter this country. There was the case of mistaken identity in Albania. What else leads you to say that a continuation of Bush policies would be a problem. Show your work.

    daleyrocks (5d22c0)

  51. Ok, first, thinking that I’m a Kos kid is just sort of funny. I actually wish I could support the Repubs at the moment, but they’re simply acting like children.

    Considering that we have extra-legal detainees, and have to do something with them, is a fact. One can take a few different viewpoints here: retroactively legislate that they’re sitting in Cuba for legal reasons, shoot them already, render them to whomever will take them now, give them a visa and let them work at MacDonalds. I hope that there are other options I’m missing.

    But the fact remains, we, and by “we”, I mean the Bush administration acting for our country, poisoned the well. If we had just taken bounties from Afgan hunters and shot them, well, no, by my intuition (you may well disagree) that wouldn’t be moral, but we wouldn’t be having the conversation now. But since we parked them in Cuba and tortured them,well, that complicates things, doesn’t it?

    Having a structured, functional legal system means that you use the legal system. Geneva, the CAT and various international law arrangements are things to work within, not try to evade with a smirk.

    fishbane (8964f9)

  52. No one was tortured in Gitmo!
    That is a Liberal, and IslamoFascist, canard.
    It is a Lie, and you disgrace yourself by repeating it.

    AD (8486ab)

  53. You children are just acting childish. It is far more mature to repeat canards, aka lies, and just agree with everything that Teh One, Teh Lightworker says. Don’t worry about what he actually does.

    JD (55d896)

  54. No one was tortured in Gitmo!
    That is a Liberal, and IslamoFascist, canard.
    It is a Lie, and you disgrace yourself by repeating it.

    Do you know that? How? Under what circumstances would you be willing to repeat that?

    Facts are facts.The Post, Forbes, and the FBI accept the reality that you choose not to.

    Do you believe the FBI is a liberal front? Or perhaps you wish to quibble about definitions, and assume that we’re really run by a squad of liberal impostors who spent years working up to undermine all the good work that Scooter Libby did.

    fishbane (b5424d)

  55. I think that describing the concerns over what actually constitutes “torture” is a little more substantive than quibbling over definitions, as you so dismissively put it.

    JD (5535b9)

  56. OK, JD. So be it. What, in your mind, constitutes torture?

    I wonder if you’re going to disagree substantively with the FBI. Not because it matters, or anything, but it would sort of put a stake in the ground.

    fishbane (b116d5)

  57. Dangerous individuals were confined in not so comfortable manners to ensure the security of the personnel attending them, and the country at large.

    As much as it might offend the delicate sensibilities of the pussies at the FBI (who can’t be bothered BTW with recording interviews with suspects less their own digressions catch up with them), that does not constitute torture as specified in statute by the Congress of the United States.

    You have a lot to learn.

    AD (8486ab)

  58. AD – With their mendoucheousness, they allow themselves to internally maintain their false idea of moral superiority.

    Fishbane – When did the FBI get to define torture?

    JD (a6482e)

  59. “As much as it might offend the delicate sensibilities of the pussies at the FBI ”

    Its so odd, what we have become.

    imdw (a87919)


Powered by WordPress.

Page loaded in: 0.4482 secs.