High Thresholds

by digby

They really are trying to kill me. Here’s Spencer Ackerman:

Let’s unpack a claim about the Guantanamo detainees, as summarized by Marc Ambinder:

It had been the hope of administration legal advisers that a majority of the 240 [Guantanamo detainees] — perhaps a large majority — would be tried in federal courts. Then they discovered that the evidentiary thresholds for doing so were too high given the quality of information the Bush government had collected about the detainees, and they subsequently concluded that Article III trials wouldn’t be as swift as an option that they wanted to reserve for only a couple dozen high-value detainees: the military commissions.

To say that the “evidentiary thresholds” for trying the detainees in civilian court is “too high” is another way of saying there isn’t sufficient evidence on the face of it for the constant invocation that the detainees are terrorists. If it can be proven that a detainee has given material support to terrorists or contributed to an illegal act, he ought to be convicted. If it can’t, then a detainee ought to be freed. What would happen in that case? Someone who isn’t a terrorist would be free. The detainees, according to the Supreme Court’s Boumediene decision last year, have the right to habeas corpus, full stop. There’s no putting that bit of juridical toothpaste back in the tube. As a result, they have to be provided with some sort of trial. Everything else is denying reality. The military commissions represent a method of getting convictions rather than a method of getting justice. Just saying someone is a terrorist over and over again doesn’t make it the case.

There is no excuse for not knowing that the “evidentiary threshold” might be a little bit too high. We’ve known for years that they didn’t have real evidence against many of these guys and what they later obtained in the form of “confessions” had been obtained through torture. Common sense says that they wouldn’t have felt the need to create this extra-legal system if they could have convicted them in normal civilian or military courts.
And, I’m sorry, but I just don’t believe this anyway. The problem here is political, not procedural, and the administration and the Democrats just don’t want to expend any political capital because they don’t care enough about this to risk giving the Republicans something to hang onto.
The easiest thing to do at this point would be to give these prisoners military courts martials and if the Republicans object, they should immediately develop a full blown case of the vapors, screeching at the top of their lungs that the GOP has no respect for the military and is devaluing our troops. If these courts are good enough for our boys, they ought to be good enough for a bunch of terrorist suspects. But that won’t happen. It would be inappropriate, as Ben Nelson said today.
Update: Well, at least there’s this:

Under heavy criticism for a series of decisions on national security that resembled, for some, those of the Bush years, President Barack Obama hosted a lengthy meeting on Wednesday with the leaders of several key human rights and civil liberties groups. Addressed were the topics that promise to be front and center during the President’s major foreign policy speech scheduled for Thursday. According to an attendee, Obama expressed frustration with Congress’ decision to remove funding for the closure of the U.S. prison at Guantanamo Bay. The president declared that his hands were tied in some ways regarding the use of reformed military tribunals, though he pledged to try as many detainees as possible in Article III federal courts. […]
There was much to probe. According to Massimino, Obama had “two baskets of issues he wanted to talk about: one was Guantanamo and all of the things pertaining to closing it. And the other was transparency.” On Gitmo, Massimino said, the President “emphasized that he was in this for the long game. He said he realized that you can’t change people’s misperceptions overnight, that they have had eight long years of a steady dose of fear and a lack of leadership and that is not something that you wave a magic wand and make it go away.”

If it weren’t for the fact that every single voter voted for a man who said they would close Guantanamo in the last election, I might buy this. And the “long game” is actually long enough already for those who’ve been held for years without being able to confront their accusers and with no idea if they would ever be free.

While acknowledging that she did not have verbatim quotes from the president, Massimino nevertheless relayed some of the remarks he made on other key foreign policy topics. On the administration’s decision to reverse course and oppose the release of photos depicting abuse of terrorist suspects, she said that Obama brought it up without being prompted. “He raised it,” she said. “We didn’t have to ask.”

On his decision to maintain and improve the use of military tribunals to try terrorist suspects, Obama, she said, “seemed to imply that some of the circumstances of capture of some of the people of Guantanomo would lend themselves to trial in a military commission.” He reiterated, she added, that “despite the announcement of military commissions on Friday, his strong preference was that we use Article III courts…” […]
Asked whether the president had pacified some of the concerns she brought to the White House on Wednesday, Massimino said that she was pleased with the opportunity for engagement. Beyond that, she still registered concerns. “I think that many of us were disappointed by the announcement about the military commissions and wondered what the reasoning was behind that. And to be honest, I am still wondering having been in this meeting today. I don’t think that this fits the overall framework that the president had articulated about using our values to reinforce a counter terrorism strategy against al Qaeda.”

And expanding the state secrets argument and withholding FOIA documents (or issuing signing statements which claim executive privilege over bailout oversight) doesn’t fit into the transparency framework either.
It’s a good thing that Obama wants to keep an open dialog with the human rights community but it’s become quite clear to me that Democrats as a whole — and I believe with his 65% approval rated permission — have concluded once again that in order to appear to be tough on national security they need to capitulate to the Republicans by punching the hippies — the only people who seem to give a damn about the constitution, civil liberties and human rights. It’s pavlovian.

.