LawProfs Comment on Guantanamo

Seton Hall LawProf Mark Denbeaux, Iowa LawProf Tung Yin, and UC Davis LawProf Diane Amann comment on the dilemma the Obama administration faces as it sifts through the Guantanamo cases. A "charge or release" policy seems to be the consensus; there is also agreement that some prosecutions may not be possible due to evidence tainted by torture techniques. But Yin points out that it may be a bad move to release high profile detainees such as Khaled Shaikh Mohammed, who admitted to being the mastermind of the 911 attacks but who also was subjected to waterboarding and other harsh interrogation tactics. "In a regular criminal case we would say the government violated the constitutional rules so the remedy is to suppress the evidence. The government can't make its case without the suppressed evidence so the defendant has to be let go...I think there is going to be some discomfort level with simply releasing Khaled Shaikh Mohammed." Yin says the prospect of releasing so-called high value terror suspects may force the new administration to create a system of preventive incapacitation similar to Bush's enemy combatant detention.

But Amann warns that "it would be a mistake to continue to rely on a version of the Bush enemy combatant detention regime." "Are we going to depart from 200 years of legal tradition prohibiting this kind of detention [without charge] and craft an entirely new program" for the probable handful of detainees who pose a threat?

Denbeaux points out that releasing terror suspects could advance US intelligence. "Agents could be tasked to watch them, trace their movements overseas, and tap their phones. If former detainees seek to contact Al Qaeda, their movements and contacts could provide fresh intelligence on the terror group. To me, released detainees are a window into the world that is out there, and if we are not looking through that window it is a waste." More from the Christian Science Monitor... [Michele Berry]