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Heads: Detention, Tails: Detention

Alex Abdo,
Former Senior Staff Attorney,
ACLU Speech, Privacy, and Technology Project
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May 31, 2009

It is difficult to divine the purpose of today’s closed-door session and tomorrow’s on-the-record hearing of the military commissions at Guantánamo Bay, Cuba. Although President Obama called for the suspension of the Bush-era commissions shortly after taking office four months ago, and despite his recent announcement of his plan to “fix” the commissions, the mystery that is Guantánamo marches on, seemingly oblivious to state-side developments.

The ostensible goal of the hearings is to resolve two preliminary issues in the military-commission trial of Omar Khadr: his selection of counsel – an issue that has plagued virtually every military-commission proceeding – and the prosecution’s request for a stay of the proceedings.

But resolution of those two issues seems a meaningless endeavor in light of President Obama’s decision to scrap the current military commissions and even more so given the replacement for them that President Obama outlined in his speech at the National Archives.

In that speech, the president focused on one overriding theme: he will under no circumstances release someone who he considers to be “dangerous,” whether or not he can prove it. Around that organizing principle, the president constructed a simple system of detention. If there is good evidence of a detainee’s guilt, he will try that detainee in federal court. If there is perhaps some evidence, but it is tainted by coercion or for some other reason would not convince a federal court of the detainee’s guilt, he will try the detainee before a military commission, where the rules are rigged in favor of the prosecution. And if there is no viable evidence of guilt, but the president really thinks the detainee is dangerous, the president will simply detain him – indefinitely and preventively.

This plan, if carried out, would give President Obama the dubious distinction of being the first president in our nation’s history to seek congressional codification of an expansive system of preventive detention. Perhaps even more telling, however, the plan amounts to a plea for Congress to enshrine into law, perhaps with some as-of-yet-undefined oversight, the power that President Bush asserted without any statutory support.

It is in the shadow of this heads-I-win-tails-I-win system of guaranteed detention that this weekend’s military-commission hearings take place. What purpose they serve is a mystery to most here. But on they will go.

(More to come after tomorrow’s on-the-record hearing.)