Posted by MataHarley on 10 November, 2008 at 1:00 pm. 32 comments already!


Less than a week after election day, I think we can see that parting the waters and healing the planet are not going to be Obama’s first tasks as POTUS. But could it be that Obama is pulling the same stunt the left has been blasting Bush for over Gitmo detainees?

Say it ain’t so…. as Palin would say.

Indeed, Obama… like McCain… plans on closing Gitmo. This, in itself, is not a surprise. But how, and the timing is quite the surprise. Even Dan Ephron at Newsweek, just three days ago, predicted the problems faced in closing Gitmo wouldn’t permit this to be quick… let alone one of the first things a President Obama would do.

Apparently Dan didn’t take into consideration the man who wants to “remake this great nation”. And boy, is he getting started.

Unlike McCain, who wanted to let the military tribunals handle the security sensitive cases, Obama-elect and advisors are laying plans to create a new court system just for them. Two versions of American justice??

President-elect Barack Obama’s advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice.

During his campaign, Obama described Guantanamo as a “sad chapter in American history” and has said generally that the U.S. legal system is equipped to handle the detainees. But he has offered few details on what he planned to do once the facility is closed.

Under plans being put together in Obama’s camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts.

A third group of detainees — the ones whose cases are most entangled in highly classified information — might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. Advisers participating directly in the planning spoke on condition of anonymity because the plans are not final.

“Let me be clear”, as Obama loves to say… this bit about addressing this particular category of detainee has been the source of the left, this campaign, and a SCOTUS decision. Bush recognized this was not your run of the mill criminal court scenario, but that didn’t stop the left from screaming about the detainees habeas corpus… even tho they were enemy combatants held on foreign soil. Indeed, the only reason the SCOTUS came to the decision they did was built *entirely and solely* on whether the SOFA in Cuba designated Guantanamo as US or Cuban soil. Without it being considered US soil, the decision would have gone quite differently.

But now, as both McCain and Obama wanted to do… we’re bringing them here, to a neighborhood near you.

While this has been simmering slowly and quietly in the background, enough details have come out to even have the ACLU looking askance.

It drew criticism from some detainee lawyers shortly after it surfaced Monday.

“I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake,” said Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees. “We do not need a new court system. The last eight years are a testament to the problems of trying to create new systems.”

Apparently, there may be no easy ride from the DNC/left that insist on giving the detainees nothing less than full constitutional rights either.

“There would be concern about establishing a completely new system,” said Rep. Adam Schiff of California, a member of the House Judiciary Committee and former federal prosecutor who is aware of the discussions in the Obama camp. “And in the sense that establishing a regimen of detention that includes American citizens and foreign nationals that takes place on U.S. soil and departs from the criminal justice system — trying to establish that would be very difficult.”

Obama’s idea is that this new court system is a hybrid of the US courts, and Bush’s military tribunals. Interesting stance considering his statement on the campaign trail after the SCOTUS opinion.

“The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo — yet another failed policy supported by John McCain,” Obama said. “This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.”

“The fact is, this Administration’s position is not tough on terrorism, and it undermines the very values that we are fighting to defend,” he said. “Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values.”

I guess it’s easy to talk about “core values”… i.e. either they have constitutional rights, or they are unlawful combatants who should not be run thru the US court system… until the reins fall in one’s own hands. Now Obama sees the quandary the current admin faced in handling the detainees…. and why they were kept off (what they thought) was US soil.

So now, Obama needs to create a “new system of justice”. Wonderful.

Obama has said the civilian and military court-martial systems provide “a framework for dealing with the terrorists,” and [Laurence] Tribe** said the administration would look to those venues before creating a new legal system. But discussions of what a new system would look like have already started.

“It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts,” Tribe said. “It will have to both be and appear to be fundamentally fair in light of the circumstances. I think people are going to give an Obama administration the benefit of the doubt in that regard.”

**Mata Musing: Laurence Tribe, a Harvard law professor, is Obama’s legal adviser

Excuse me? The benefit of the doubt in that regard??? I’d like to say I’m speechless, but let’s just say what speech comes to mind is not fit for public print.

In theory, Obama could try to transplant the Bush administration’s military commission system from Guantanamo Bay to a U.S. prison. But Tribe said, and other advisers agreed, that was “a nonstarter.” With lax evidence rules and intense secrecy, the military commissions have been criticized by human rights groups, defense attorneys and even some military prosecutors who quit the process in protest.

“I don’t think we need to completely reinvent the wheel, but we need a better tribunal process that is more transparent,” Schiff said.

That means something different would need to be done if detainees couldn’t be released or prosecuted in traditional courts. Exactly what that something would look like remains unclear.

According to three advisers participating in the process, Obama is expected to propose a new court system, appointing a committee to decide how such a court would operate. Some detainees likely would be returned to the countries where they were first captured for further detention or rehabilitation. The rest could probably be prosecuted in U.S. criminal courts, one adviser said. All spoke on condition of anonymity to discuss the ongoing talks, which have been private.

Like most of Obama’s other grandiose plans, they were long on rhetoric, and short on specific details. As the President-elect’s term nears, we’ll finally learn more about just how Obama plans to implement his visions for this nation.

If this is our first look at the “new” way of doing things, not only to mention his choice of priorities, we’re going to be in for a very long four years.

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