Obama's Fifth Category: The "Untriable" By William Fisher

[Demeter]

http://www.truthout.org/1124094

In his talk at the National Archives in May, President Obama referred to five categories of prisoners currently held at Guantanamo Bay.

First, there are those who have violated American criminal laws and will be tried in federal courts. There may be as many as a dozen men in this category, five of whose trials were announced last week, including that of Khalid Sheikh Mohammed.

Second, there are detainees who violated the laws of war and who will be tried by the "new and improved" military commissions. Five prisoners were also designated for such trials last week and there is speculation that there are perhaps 25 more who fall into this category.

The third group consists of 21 detainees who have already been released by the courts.

Fourth, there are believed to be some 90 prisoners who are cleared for release and who can be transferred safely to other countries if such countries can be found.

So what is this "fifth category" of detainees? It consists of prisoners who are thought too dangerous to release, but who cannot be brought to trial.

According to The Washington Post, quoting an unnamed official, there are some 75 prisoners in this "fifth category." And the administration's position is that these people are untriable because the evidence against them was obtained through torture or because public trials would involve and potentially expose an unacceptable volume of classified material.

Which leaves the administration with the question of what to do with these people.

The Obama administration gave the human rights community apoplexy when it referred to "preventive detention." Now, it is simply saying that it's not going to seek any additional authority from Congress for such preventive detention. Which perhaps gives us a clue to the approach the administration has in mind. In a study by the Obama-friendly Center for American Progress, analyst Ken Gude suggests that the Obama administration "incarcerate detainees convicted in US criminal courts in maximum-security US prisons and transfer those who will remain in military custody to Bagram prison in Afghanistan." (Emphasis mine.)

That latter group would presumably include the untriable. Which appears to create a neo-GITMO at Bagram in Afghanistan.

In an effort to make sense out of this maze of legal confusions, I contacted a group of people I consider to be some of the best minds in constitutional law. In my simplistic layman's way, I questioned the assertion that certain people can't be tried and opined that it seemed to me that anyone who is accused of a crime can - should, must - be tried for that crime, and can not be held indefinitely without a trial.

Here are some of their responses: CONTINUES AT LINK



So not even all the Constitutional experts agree precisely on the legal basis for putting a prisoner into that "fifth category" - the ones we're told can't be tried but are too dangerous to release. Largely because the Bush Administration tried to create its own law, the legal landscape is confused and confusing. But that doesn't help the Obama Administration. It still faces the question of what to do with these people.

In doing so, it faces a group - a very small group - of bad options. It can charge a person with a crime and risk being embarrassed by having tainted evidence thrown out of court. A court might also find that its evidence is insufficient or unreliable. A defendant might actually be exonerated or win on appeal - what then?

When, for one reason or another, you reject all but one of these options, you need then to accept that we are on our way to warehousing people.

For Americans, this is contrary to everything we've ever been taught about our system of justice.

William Fisher has managed economic development programs in the Middle East and in many other parts of the world for the US State Department and USAID for the past thirty years. He began his work life as a journalist for newspapers and for the Associated Press in Florida. Fisher also served in the international affairs area during the Kennedy administration. Go to The World According to Bill Fisher for more.

[Arctic Dave]

1. Funny how we can house these people for the rest of their lives but Saddam had to die ASAP.

You would think these guys would have met "accidents" by now. I wonder how many of them actually worked for us. I believe that is the main reason they can't try them.

[struggle4progress]

2. There have certainly been surprisingly few efforts at prosecution: David Hicks pleaded guilty, of

course, with an agreement to keep his mouth shut for a while, but he doesn't seem to have been particularly dangerous; the attempt to force Binyam Mohamed to plea fell flat and charges against him were eventually dropped

Considering that the place has been used as an illegal prison for about eight years now, one might expect that there's been adequate time to develop criminal cases against anyone under suspicion based on real evidence

Of course, the fact that DoD a few years back released about 750 names on its GITMO list, with fewer than 250 persons still incarcerated there today, suggests really unimpressive evidentiary standards for detention