Guantanamo inmates, Congress, Obama, other countries, magic ninja terrorist powers, and a time for presidential unilateralism?

Obama is apparently kicking around the idea of reasserting executive power to indefinitely detain people on the grounds that it’s good for civil liberties groups if it comes from him rather than from Congress.

Despite the skepticism expressed at the link, I can come up with a conceivable legal/political justification for this move: if Obama actually thinks that Congress will pass a bill requiring people to be held indefinitely at Guantanamo unless he does it himself, then it makes sense for him to assert executive authority in order to hold open the possibility of changing the practice later when Congress is more complaisant. In political science terms, he doesn’t want legislation to shift the status quo (if I weren’t so lazy, this is where a bunch of spatial models explaining why would appear) in the wrong direction.

But that argument assumes that Congress would actually do so if Obama doesn’t act. And that has a bunch of really horrible implications: either Obama is a total coward who wouldn’t be willing to actually take this fight all the way with a fucking Democrat-controlled Congress — e.g. vetoing any such bill — or he’s so weak that he can’t even keep his own party’s Congress from overriding a veto on a bill that flies directly in the face of one of the major issues on which he was elected, and probably can’t even bring the public with him on pressuring Congress even with the aid of mass outrage over things like torture.

Here’s what I take to be the main argument of the pro-Gitmo camp, from the comments at the TPM:

I’m not happy about this either but what do you do with Khalid Sheikh Mohammed? The guy should spend the rest of his life in the Colorado Supermax with his nephew, Ramzi Yousef. But how do put KSM on trial considering the fact that most of the info we got from him was obtained via torture. I mean, we waterboarded the guy 100 times. This is the legacy Bush handed down to Obama – but then the torture supporters don’t care if KSM rots in jail for life, uncharged and unconvicted. Frankly, I’d like him to rot in jail for the rest of his life, but you need to try him for what he did. Unfortunately, we can’t do that, thanks to Bush. That is, of course, absent new legislation that would come up with some sort of system to try folks like KSM.

I’ve heard this argument over and over and over. But I’m quite skeptical. First of all, KSM might well be convictable without evidence derived from torture, in a civilian court. This guy was about as big a player as they get, it ought to be possible to get all kinds of circumstantial evidence, testimony from non-tortured witnesses, etc. So don’t give me that “we’ll have to set Khalid Sheikh Mohammed loose on the world” bullshit.

Second, suppose that’s right — suppose for some bizarre reason they couldn’t convict Khalid Sheikh Mohammed. It would be great if he could be brought to justice, but, because of the torture, he can’t. So, why not release him? Because of the alleged threat?

But a handful of individuals are just not that threatening. Khalid Sheikh Mohammed, qua individual, is not a serious threat to the U.S.. He’s one guy. His last name is neither Caesar nor Bonaparte. Al-Qaeda has a shitload of guys who are on the loose. Why should one more be some kind of massive national security problem? What is the marginal threat per terrorist? Does he have magic ninja terrorist powers? Will he singlehandedly knock down the Statue of Liberty? I dare say KSM is less of a threat than other Al Qaeda members, because we know who he is. We can watch him, we can keep him out of the U.S., we can shoot him on sight if he shows up with a gun anywhere near a U.S. Embassy or troop, etc.

He obviously shouldn’t be allowed onto U.S. soil. So don’t allow him on U.S. soul. Is it that difficult?

“But,” the pro-Gitmo crowd will interject, “no other country will take him.”

This is a worrying claim, but is it ultimately convincing? The off-the-cuff answer is “why should they be given any choice?” Particularly, why shouldn’t the countries of which these people are citizens be dealing with them? For those Gitmo inmates who are citizens of countries the U.S. is occupying, like Afghanistan and Iraq, it would require a pretty good argument to convince me that we ought not to just take them to those countries and open the handcuffs in the airport. And something similar might be done with other countries — what on earth are they going to do? File a diplomatic protest because we gave them their own damn citizens back? Seriously?

I’d really like to know more about the whole “they won’t take them” business, actually. Is there any precedent for this? Suppose an international criminal from, say, France shows up in the U.S., we catch him at the border and decide to deport him. What does the U.S. government do if France says “we don’t want him?” Would they just tell the French to go fuck off and bundle him back onto a plane?

Unilateralism has its uses…

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One Response to “Guantanamo inmates, Congress, Obama, other countries, magic ninja terrorist powers, and a time for presidential unilateralism?”

  1. Bilbo Gubbinz Says:

    Call me idealistic and I’ll admit I slightly mythologise the whole legal system, but what about the dangers to due process? The legal system is built around the basis that it’s better to let a villian go free than to jail an innocent man. When we subvert that principle we’re going down the road of undermining a damn important civic protection.

    Hell, why not go the whole hog and say that when KSM goes free it’s just desserts and should anything happen, anyone involved in this travesty should know damn well it was their failure and their fault. Obama needs to have the courage to realise that this is one bullet he’s going to have to bite.

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