Some pundits think that we should wait and see what Obama does with the Bush-era torture regime; in my opinion that attitude is dangerously wrong. America’s credibility hangs by a rapidly fraying thread. Saving it will depend on relentless pressure from prominent pundits, preferably voices much more prominent than Glenn Greenwald, to pull up the rocks and expose the entire regime to disinfecting sunlight.
Doing anything else exposes Obama to legal peril and, worse, to have two different administrations governing the Conventions’ most important signatory treat them as optional could render the accords functionally meaningless. Small nations would gladly cite the American example, as some have already done. Russia and China would stop pretending, leaving Europe and a few other modern states to wage a losing defense. Unlike George Bush, Barack Obama may become something resembling a role model and not a seedy example against whose comparison globe-straddling leaders shrink in fear.
Obama’s flexibility to handle the remaining detainees as he sees fit will be constrained by the manner in which they have been treated while in U.S. custody. Remember that Hamdan was chosen as the first defendant for the military commissions in large part because the prosecution thought it has a “clean” case against him—and yet on the very first day of his trial, his military judge threw out a number of his statements to interrogators, ruling that they had been coerced from him and were therefore unreliable. And that happened in a trial system effectively designed by the Pentagon to ensure convictions.
Look at it this way: Of the 200 or so detainees left on Guantanamo who have not been cleared for release (pending the necessary arrangements), the Bush administration intended to try only some 70 or 80 before military commissions. That leaves more than 100 whom it considered too dangerous to release but was not planning to put on trial. “What lies in those files that’s an obstacle to prosecution?” Waxman asks.
When Obama finds out, he may learn that his options for keeping them locked up are limited.
We cannot justify holding on to virtually any of our detainees without charging them in a legitimate court. However, as the Hamdi case illustrates, fairly charging tortured and illegally kept detainees is essentially the same as freeing them. Then the liberated detainees can file lawsuits. If the new government shows a few scruples about using the State Secrets card more honorably then, like the pending suit by Maher Arar, an innocent Canadian tortured for a year in Syria, the civil suits alone could be catastrophic.
We already know that discovery will uncover prosecutable crimes in practically every case. Ergo, prepare for the greatest fletchering ever seen by man. If levied honestly, damages could collectively rank in legal history with the tobacco settlement. I do not have the training to guess how much one year of a life is worth, or five years. If those five years included relentless abuse that left you physically scarred and psychologically damaged, how much would you ask for?
As far as I can tell we will either geld Geneva or else we will release the vast majority of our muslim prisoners (possibly all of them, innocent and otherwise), pay them for their time and prosecute the torturers whom the president fails to pardon. If a middle way exists I fail to see it.