This is a proposal from two distinguished lawyers to solve the Gitmo issue. Generally speaking I'm uncomfortable with it. One of the reasons constantly given for the idea that terrorist suspects cannot be tried is that their defense lawyers may leak classified information and enable them to communicate with their free comrades. This is a reasonable objection, which has a reasonable solution: The court would have a permanent staff of elite defense lawyers with special security clearances as part of its permanent staff.
Unfortunately, having easily solved the problem the administration claims to have, they delve into the real problem, which the administration hasn't admitted that they have; that they don't actually have any evidence against some of the people they are detaining: Criminal prosecutions should still take place where they can. But they are not always feasible. Some alleged terrorists have not committed overt crimes and can be tried only on a conspiracy theory that comes close to criminalizing group membership. A Congressionally sanctioned system of preventive detention, which would supplement the criminal process, is far from unprecedented.
These lawyers suggest that we simply embrace the idea of indefinitely detaining people against who we've no evidence, as long as we do it with a lot of formal process. Particularly disconcerting is the fact that they follow up with this bit of doublespeak: And consistent with the values enshrined in the Constitution’s equal protection clause, Congress should insist that the same rules apply to citizen and non-citizen terrorist detainees.
Out of context, I agree. I can't stand the claim that reasonable due process is some sort of privilege of citizenship. Reasonable due process is the way your legal system has decided that it can make reasonable decisions. Without it, your decisions are by definition unreasonable. However, in context, what this means is that citizens may be detained indefinitely without evidence of wrongdoing. How this is an improvement over indefinite detention without trial I'm not really sure. The Terrorists’ Court - New York Times |