July 8, 2011

RUTH WEDGWOOD: Obama’s Prison Hulks and Al Shabab: The Complications of the Law of War.

With rope work worthy of any cowpoke, the Obama Administration has captured itself in its own legal lasso.

President Obama came into office pledging that his view of the law would be different from George W. Bush and that he would close the prison facilities at Guantanamo within a year. But governing is always harder than the sound bites of a campaign trail. And though this is no surprise to anyone with radar, there appear to be dangerous leaders of al Qaeda and its affiliates still parked at Guantanamo, against whom there is not sufficient evidence for a criminal conviction by proof beyond a reasonable doubt, either under the restrictive common law rules of evidence in a federal district court or even in a military commission. And where intelligence was first obtained from a prisoner under unconventional circumstances, the path to trial is even murkier. Thus, President Obama may—like it or not—end up far closer to the policies of George W. Bush than some of his supporters will like.

Read the whole thing. Especially this bit: “Well, there is one rule that the White House and the Defense Department seem to have overlooked in this inconvenient instance. It is the rule that flatly forbids holding prisoners captured in war in any locale other than ‘on land’—a rule with a history that stems from the American Revolution itself, when rebellious Americans caught by the British were interned in the death-dealing conditions of British prison ships hulking in New York harbor. . . . Thus, it’s hard to see why it was adjudged as convenient to hold the al Shabab leader as a shipboard prisoner for more than two months, with intelligence officials flying in and flying out, rather than transporting him to Guantanamo.”

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