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Innocent Detainees?

What, if anything, do we owe detainees who were later discovered to be in the wrong place at the wrong time?

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06/02 at 10:38 PM

Very informative.  McNeal is definitely an expert, and this is one of the best interviews I’ve seen on this topic.  If only policymakers were listening to McNeal all along.  Is Obama listening now?  Let’s hope so.

Gregory McNeal
06/03 at 04:26 PM

Thanks to the viewers who tuned in and sent me thoughts or posted their thoughts here.  One correction, during my conversation with Patty I misspoke and said that a senior leader of al Qaida in Iraq was a former Guantanamo detainee, I intended to say a senior leader of al Qaida in Yemen.  If I catch anymore slip-ups I’ll be sure to note them here. 

I look forward to engaging viewers here and in the on-line forum on June 11th at 10:00pm.

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06/03 at 11:36 PM from Carlisle, PA

This was a great interview. I, and I assume many others, were not aware of the more technical complications.

As many people including myself believe, there are many people that are/were being held in Guantanamo that should not be there. You acknowledged them by suggesting that we release them. However, you also acknowledged the potential for a miscalculation such as a detainee retaliating and killing would have significant implications. In essence, I truly believe many people should not be there, but how do we really know that they should not be? In addition, how do we ensure that these detainees, who should not have been held, have now now become hostile due to the fact they have been detained for years?

I share your belief that it would be ideal, and politically beneficial to the United States to allow nations to conduct trials of their own war criminals. In the case of Saddam Hussein, I believe that would have yielded great benefits to the U.S., but admit it was probably not plausible at the time. You cited that allowing other countries to try their own criminals could be problematic, e.g. bias, leniency, and allowing these criminals to easily return to what they were doing before.

All the solutions I came up with would either violate due process, illegal, or actually hurt the U.S.

What could the U.S. due to ensure that the problematic occurrences do not happen? Could the U.S. be present behind the scenes somehow?

I look forward to speaking with you during the live chat on June 11.

Gregory McNeal
06/04 at 09:30 AM

Michael,

Thanks for your note and your remarks about the interview. 

You ask, how do we really know that those held/released should be held/released?  That is, how do we know we are making the right choices?  This is where process could have made a difference, especially the process followed in late 2001 and early 2002.  At that time administration officials made the determination that *all* al Qaida and Taliban were “unlawful enemy combatants” and that no individual determination of their status was required (This is contrary to the Geneva Conventions and long standing practice in the military.  The Geneva Conventions require that whenever doubt arises as to an individual’s status, a panel must be convened to make a determination.  In the U.S. military, that is a panel of three officers). 

The consequences of this were that many individuals were not appropriately screened prior to detention.  It wasn’t until the Supreme Court’s opinion in Hamdi and Rasul that the Department of Defense created a review system known as the Combatant Status Review Tribunal (CSRT), which was a panel intended to adjudicate these detention questions (e.g. is this individual an unlawful enemy combatant subject to detention) and an Adminstrative Review Board (ARB) to conduct an annual review of whether the individual is still a threat and should remain as a detainee.  Of course as I note in the interview the CSRT’s were seen as overinclusive and unreliable by the detainees.  That is the challenge they successfully brought in the D.C. Circuit, and ultimately brought to the Supreme Court in the Boumediene case where they earned the right to habeas corpus.  On the flipside is the fact that some of those who were released or transferred following a CSRT/ARB determination ultimately rejoined the fight.  There is risk on both sides, and as I note in the interview, the difference between President Bush and President Obama is where they draw the line regarding that risk.  President Bush sought to err on the side of not releasing individuals who might return to the fight (which necessarily means that there is a greater likelihood of an innocent person being detained), President Obama appears inclined to err on the side of no wrongful detentions (which necessarily means that there is a greater likelihood of a dangerous person being released). 

As for the process that is being followed today.  First, the population in Guantanamo has largely been whittled down to a group who are too dangerous to release and will face trial, a group who are too dangerous to release but can’t be tried, and those slated for release/transfer.  The government has made their own determination regarding who should be released, and post-Boumediene, the D.C. District Court’s are hammering out procedures for reviewing the government’s detention decisions.  That habeas litigation is taking months to develop procedures, and in many respects the procedures reflect the approach followed by the CSRT’s, however they have the legitimacy which comes with independent Article III court review.  Interestingly, the Obama administraton recently filed a brief in the case of the Uighurs, arguing the exact same position that the Bush administration had been arguing, that is a court cannot order the President to release any detainees, such decisions are the sole perogative of the political branches.  Very interesting. 

The key take-away is that Guantanamo is sui generis, and needs to be fixed on its own, independent of any new detention scheme.  If a new detention policy needs to be crafted, that policy should be crafted prospectively, with an eye toward how the next detainee should be handled, not with an eye toward fixing Guantanamo.  What to do about GITMO and what to do about the future, are in essence two separate questions. 

As for local justice and the concept of complementarity.  In the case of Saddam Hussein he actually was tried by an Iraqi court known as The Iraqi High Tribunal (along with many other senior Iraqi officials responsible for genocide, war crimes and crimes against humanity).  The court which tried Saddam and his ilk, benefited from the influence of American and British advisors (through the Regime Crimes Liaison Office), but the judges, prosecutors, defense counsel, and court staff were all Iraqi.  Moreover, the statute which created the tribunal was passed by the Iraqi legislature and all of the crimes either existed in Iraqi law, or were copied from existing precedents embodied in international criminal law. 

The IHT was a perfect example of local justice, albeit a flawed one.  Despite its flaws, and some legitimate critiques of the IHT, I believe in many respects it was falsely portrayed by many commentators.  The IHT suffered from a lack of international goodwill and political support, largely attributable to nation states carrying their opposition to the Iraq war over into their opposition of the IHT, and a similar opposition from human rights groups.  This was unfortunate because the IHT was not about the 2002 Iraq invasion, it was about holding Saddam’s regime accountable for the genocide, crimes against humanity and other crimes committed against tens of thousands of Iraqi people.  The victims deserved more from the international community, and it’s shameful and hypocritical that more nations did not support the IHT.  I understand that some nations may have thought that the IHT did not fully comply with human rights law, but those nations could have had a seat at the table and helped improve the IHT, instead they sat on the sidelines and didn’t help the IHT and by virtue of their absence did not serve the interests of the victims of Saddam’s regime.  For more information about the Iraqi High Tribunal, check out my book with Michael Scharf: “Saddam On Trial: Understanding and Debating the Iraqi High Tribunal.” (http://www.amazon.com/Saddam-Trial-Understanding-Debating-Tribunal/dp/1594603049/ref=sr_1_1?ie=UTF8&s=books&qid=1244121653&sr=8-1) For more of the inside baseball/behind the scenes look at the Iraqi High Tribunal I recommend Michael Scharf and Mike Newton’s “Enemy of the State” (http://www.enemyofthestatebook.com/).

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06/04 at 12:10 PM from Penn State Dickinson School of Law

Great interview.  You brought up a lot of great points with regards to the problems inherent to the system and problems with fixing the Guantanamo problem specifically.  I think you hit the nail on the head when you identified Congress’ lack of action with regards to Guantanamo and the detainee issue in general.  Any solution to the problem must have significant input and support from the Congress.  I think there is something to be said for a National Security Court based upon the British model.  In my opinion future detainee holding, and trial procedures must have some sort of transparency that has been inherently lacking since the beginning of the war. 

I hope that they bring you back for my analysis as Obama’s policies take shape.

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06/04 at 05:50 PM

Very informative interview. My questions focus on the idea of bringing Guantanamo detainees to the United States. You said in the interview and in your response to Michael above that Guantanamo detainees have been split into three groups: a group who are too dangerous to release and will face trial, a group who are too dangerous to release but can’t be tried, and those slated for release/transfer. If no other country is willing to take detainees, is Obama suggesting that detainees from all three groups would be brought to the US or just those that could be tried?

Many in Congress have voiced their opposition to bringing the detainees to their districts.  Some have argued that detainees should not be brought to the US out of fear that they would escape from prison or corrupt fellow prisoners to become loyal to al Qaida or some other terrorist organization. However, my concern lies more with the Constitutional benefits that detainees would receive if tried in US courts and their potential release in the US. You mentioned in the interview that detainees would have access to all Constitutional benefits that a US criminal would have, whether it be Miranda rights, right to speedy trial, the rules of evidence, etc. Further, you mentioned the standard of review is increased from merely providing evidence to prove guilt by a preponderance of the evidence in military tribunals to having the Government provide evidence that shows guilt beyond a reasonable doubt when tried in federal court. Thus, a detainee that may have been found guilty under the existing military tribunal system may be found not guilty when tried in US court, leading to the release of the detainee onto US soil. Is this a reality, or will the Obama Administration only try detainees in US courts that they know will be convicted?

Further, is it possible to bring to the US the detainees that fall in the group who are too dangerous to release but can’t be tried and not try them? I think the answer to this is no, since a prisoner in a US prison would Constitutional rights, specifically habeas corpus and due process. If Obama can not find another country to imprison the detainees from this group and cannot bring them to the US to try them, what exactly does he do with these detainees? Does he create another Guantanamo? If so, why not just keep everyone in the new Guantanamo, if another were to be created?

Gregory McNeal
06/04 at 08:11 PM

Matt,

Thanks for writing.  Regarding your first question, “If no other country is willing to take detainees, is Obama suggesting that detainees from all three groups would be brought to the US or just those that could be tried?”  It’s not clear right now what the Obama Administration’s position is.  They’ve made it clear that they are committed to closing Guantanamo, however they have not clarified what they plan to do with the detainees held there.  As you point out, the detainees have to go somewhere, and that is the biggest obstacle to the President achieving success in implementing his policy.  Recent news reports suggest that dozens of detainees may be headed to Europe, but nothing firm is in place yet.  The Obama Administration’s most recent brief filed before the Supreme Court suggests that they are not willing to release detainees into the U.S. 

In your second paragraph you’ve conflated two issues, namely the trial issue and the detention issue.  If detainees are brought into the U.S. and charged in Federal Court, they will be entitled to the full panoply of Constitutional protections, including the right to Speedy Trial, the right against compelled self incrimination (which includes Miranda), a presumption of innocence, the right to confront their accusers, protection from the use of hearsay, and the government will be held to a standard of proof beyond a reasonable doubt.  That is a trial issue, and if those detainees were tried in a military commission, many of those protections would still exist with notable exceptions in the area of confrontation rights, speedy trial rights, and the use of hearsay. 

My reference with regard to the lesser standard “preponderance of the evidence” related to the detention decision.  All of the detainees held in Guantanamo Bay as unlawful enemy combatants are being held on information which has been subjected to lesser scrutiny than the proof beyond a reasonable doubt standard ncecessary to find an individual guilty of a crime in an Article III court.  This lower standard is also the standard applicable under international law for POWs. 

The key point is to ensure you separate detention issues and their associated procedures and burden of proof, from trial issues and their procedures and burden of proof.  They are two distinct issues. 

Now with regard to the second part of your question “Thus, a detainee that may have been found guilty under the existing military tribunal system may be found not guilty when tried in US court, leading to the release of the detainee onto US soil. Is this a reality, or will the Obama Administration only try detainees in US courts that they know will be convicted?”  It is possible that an individual who would face a trial in a military commission might be acquitted in an Article III court.  For example, evidence derived from coercive interrogation, or secret evidence provided by an intelligence agent which is offered as truthful and not subject to cross examination (hearsay) could be admitted at the discretion of a military commission judge.  That evidence may be the key to convicting the defendant in that case.  However, if the same defendant were charged and tried in an Article III court, such evidence would be deemed inadmissible. 

As for whether the administration plans to bring such detainees to the U.S. for trial, my guess is that they would only charge in an Article III court those individuals whom they were confident they could convict, and ideally would seek a plea agreement.  However, a truly fair legal system probably should not have a 100% conviction rate, there must be some acquittals for us to believe the system is legitimate, and therefore the possibility of an acquittal in an Article III court or a military commission are realities that both President Bush and President Obama had/have to deal with. 

For example, Salim Hamdan, Osama Bin Laden’s bodyguard was charged and tried in a military commission and was acquitted on some of the charges against him.  Ultimately he was sentenced to what amounted to time served plus six months!  Granted, the Bush administration asserted the authority to continue to detain as an enemy combatant those individuals who were acquitted, or who were convicted and served their sentence, thus presenting the possibility that even if an individual is found not guilty, they still may not go free.

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06/05 at 08:16 AM from Carlisle, PA

Enjoyed the interview.  Just a comment…

Prof. McNeal made a great point when discussing how the Bush administration drew a connection between how our military action overseas and interrogation techniques at home are the sole reason that there have been no new attacks on US soil since 9/11.  The “drinking coffee while driving” argument illustrates my feeling that just because the US invaded Iraq and has detained countless “terrorists,” it does not necessarily mean that we, as a nation, are safer from attack.  On many levels, I feel that military efforts to stop or prevent new attacks are limited in their effect.  Our defenses need to be right 100% of the time (ie. we need to catch every plot or plan before it can be carried out), but the terrorists need only guess right once and break through our defenses to carry out a catastrophic event.  That said, I believe that our nation’s security interests are best served by working to improve relations with foreign adversaries.  I believe that violence begets violence and hate breeds hate.  Our foreign policy should be to scale back military action and limit intervention, if at all possible.  If our nation can begin to soften its stance on “rogue” nations, such as Iran, then maybe the public perception around the world may also begin to improve in our favor.  If terrorists want to attack our nation, then they will eventually find a means to do so.  The best remedy is to try and make it so that no one wants to attack the US in the first place.

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06/05 at 01:26 PM

I have been following the Guantanamo Bay situation for quite some time, and I feel this interview truly touched on some of the toughest issues surrounding the detention center and the problems it presents for President Obama and the United States as a whole. 

I agree that Obama should not focus all of his political resources on the Guantanamo issue at this time, and I don’t believe he has.  Obviously, he has made it a central issue, but at the same time I feel he has been dealing with our country’s numerous other problems, namely the economy, on an equal basis. 

One point I’m not sure I agree with is that Bush would have closed Guantanamo if it truly was easy to do. Yes, it did bring about great public disapproval, but at the same time so did 90% of Bush’s decisions.  I think at some point Bush realized his entire presidency was unpopular and was able to live with that.  I also have to make the point that I believe President Bush may have been influenced by his father in many of these intelligence and terrorist issues in light of him being the former director of the CIA, on top of Iraq being a thorn in his side for over a decade. 

An issue I am torn with is what to do with the detainees we have deemed to be held without merit and should be released.  As you pointed out, if even one released detainee aided in a large scale attack on the United States, the political backlash would be infinite.  At the same time, the United States is supposed to embody the very essence of democracy and human rights, so how can we maintain this image with the world knowing we have used inhumane torture methods and are still holding some people we have acknowledged as deserving of release?  I think this presents one of the most difficult problems regarding Guantanamo.
You also made the point that warfare detainees have never had the right to appear in court and challenge their detention.  However, I think it has to be acknowledged that in those past situations, such as WWI or WWII, the enemy and the scale of war was on a much greater level.  In the world wars, hundreds of thousands, even millions, of enemy combatants being contained, because that was the nature of how the wars were fought.  Today, wars are fought with technology that allows much of the fighting to be done from the air and sea.  This results in much fewer enemy detainees.  The point I’m trying to make is that today’s style of warfare may not result in as great a need to place detainees beyong the reach of the law. 

The question of what to do with the detainees is also very controversial and I liked your response to the question.  Like you said, do we just give them what they had when they were detained and send them on their way, or do we give them a chance to recover in court what they have lost over the past years of their life?  I personally feel that the detainees which have been deemed not be a threat should have an oppurtunity in court to recover what they have lost. I can’t fathom the difficulties of rebuilding your life after you haven’t seen the light of day for years.  They have to have something to get them started again, as I feel it would be impossible to just go back to your home country and pick up where you left off. 

The most interesting part of the interview for me was the Lessons from the CIA.  I agree that the releasing of the transcripts may result in our allies not trusting us with confidential information, worrying it may be released sometime in the future.  However, the transcripts that were released deal directly with the debate surrounding Guantanamo, and I feel Obama may have been trying to show the world he won’t allow this type of human rights violation and is trying to turn the United States back into the model of democracy it once was.  I don’t believe other confidential information is at risk of being released.  I was wondering if you could elaborate more on what you believe our allies and other countries feelings are toward the releasing of the transcripts?  Do you trully think this will always be in the back of the minds of anyone supplying us with confidential information, or will it blow over once it is realized how narrow and uninhibiting the release of the transcripts are to confidential intelligence?  Also, I understand that this gives the enemy insight into what they need to be able to handle when captured.  But at the same time, isn’t one of the main points of this controversy that we as a country don’t support these methods of interrogation?  I know it is unrealistic to believe we can get vital information from some of these terrorists by just sitting down and talking with them.  I was wondering what you believed would be a better method of detaining and interrogating these prisoners would be such that the United States can maintain its image as a democratic and human rights leader?

Overall, I felt this interview was excellent, and brought up the most difficult, yet most important points surrounding the proposed closing of Guantanamo Bay.  I look forward to your response.

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06/05 at 04:54 PM

I found this interview extremely interesting and informative. I’ll admit that my knowledge on Guantanamo Bay is limited, which is why I was surprised about the history of Guantanamo, the number of people who have passed through there since 2002, and that there are detainees from 30 different countries. I am curious about what has happened to the female terrorist from MIT who was nearly held at Guantanamo since she was indicted and why local jurisdiction is favored as opposed to the international court. I think the most disturbing thing for me is how we are still holding people who can’t be tried in a federal court and those people who have been deemed “subject to release” since the Supreme Court has found that they are subject to the same rights as people held in the United States. This does not seem right, and I’m surprised that there are not more people in an uproar about it. It will certainly be interesting to see what happens over the course of the next few months and even years.

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06/06 at 01:44 PM

I would also have to admit that my knowledge on Guantanamo Bay is also more limited than some of my peers.  That being said, I’ve found that possibly the most interesting aspect of the discussion was the comparison of the Bush Administration’s policies with that of the Obama Administration.  It seems to me that it is possible that President Obama may be put in a compromising situation that may put him at risk of losing some support amongst some of his supporters in exchange for the assurance of security   for the nation.  As the saying goes, “what is right, is not always popular.”  While there are undoubtedly many whom were held in Guantanamo who do not pose a threat to our national security, or that of our allies abroad, another one of my concerns that was mentioned as a national concern is that when there is a decision made as to the method of release, what might the reprecussions be.  I certainly don’t condone people being held who are “no longer considered a threat”.  These people are human beings who should be released with a sense of dignity.  However, part of me wonders what might the reprecussions of being held in Guantanamo have on a person’s psyche.  Could it make one more apt to harbor anger and hatred towards the U.S., and more likely down the road to pose a threat to our country and our allies?  Is this a chance we are just going to have to take because they were held?  There is no clear-cut answer unfortunately.

This war on terror is unlike the wars of the past.  I really liked the point that was made that terrorists don’t follow the rules of war. I personally found it appropriate to watch this interview today because today I find myself thinking of my grandfathers who served in WWII, one of which bravely invaded Normandy, 65 years ago, in order to pursue the freedoms and fight for a country that welcomed his immigrant parents so that they could escape the Communism that was entering their country.  It’s funny to think that one slight change in the battle tactics then could have changed the course of the history of mankind.  We will not know what the long-term results will be of the Bush Administration’s choices and how President Obama chooses to go forth with the Guantanamo detainees will shape the future, and that can be a frightening thought.

I’d also like to say that I’ve enjoyed reading some of my classmates thoughts on the situtation.  I find it comforting that we can all share our differing opinions and beliefs on the situation because we have the freedom to do so, and I am certainly thankful of that

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06/06 at 02:30 PM from Carlisle, PA

The interview was very interesting and informative.  I have not educated myself very much on this controversial issue, so it was certainly beneficial to gain some insight.  I thought it was especially interesting regarding the comparison of the Bush administration and the Obama administration in dealing with this.  You suggested that the Bush administration preferred to err on the side of caution, to be 100% sure that those who were a threat were not released.  You then said that the Obama administration has more of a concern for public opinion for policy success.  I found it bothersome that we found proof that some of those that were released have already resorted back to terrorist activity. How sure are we of this, and what kind of evidence do we have to prove it?  While I recognize the difficulty in figuring out who to release, when, and under what circumstances, we should be hesitant in knowing that some who have already been let go could pose a potential threat. 

I do think that the preference in resolving cases such as these in the future involves finding ways to try people on their own land- essentially a preference for local justice before resorting to the international court.  How do we ensure that other countries will establish methods of dealing with people effectively on their own territory so much that we can trust their strategies?  You had a good point in that we do not want to just move the problem elsewhere without making sure it is adequately dealt with. 

Finally, if Congress stepped it up to become more involved and create effective policies for the future, what would you suggest they come up with to provide the legislative force the President needs to deal with this crisis? Thank you for giving us the opportunity to learn more about this controversy!

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06/06 at 02:31 PM from Carlisle, PA

This interview was extremely informative and eye opening.  As Professor McNeal noted, Guantanamo Bay is a “political landmine.”  Perhaps most troubling is determining how to release the 120 detainees who are “subject to release.”  What percentage of the 120 will engage again in terrorism?  We know that around 18 of the 61 detainees previously released have engaged in such acts; thus, this is a startling possibility.  Moreover, no foreign country wants to deal with reaccepting the 120 detainees back into society.  While I believe it is necessary for the United States to dictate how foreign countries should handle the released detainees, this opens up the possibility for foreign countries to ask for something in return.  Also, does this mean that we are just “moving the problem?”  Finally, I agree with Professor McNeal in that we need to gain the support of Congress if we are going to find an equitable solution to Guantanamo Bay and terrorism issues in the future.  It is unfair to place the burden on the judicial branch, which in essence creates a battle between the President and the court system.  However, what type of “durable long term policy” would be effective?

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06/06 at 02:40 PM

I have a strong interest in the status of Guantanamo Bay, and I believe this interview was well structured to elaborate some of the major issues facing its closing. There were a few questions that I had about topics that came up during the interview.

1. Initially, our government found that US laws and rights did not reach to Guantanamo Bay, due to what you called a legal black hole. Could you please explain the logic behind the original decision that our laws and rights do not reach?

2. You stated that about 35 of the detainees could or should be tried in court, and that the others should be released. Would the US work with other countries to decide who to try, and with this help, would that number rise?

3. You gave four options for closing Guantanamo Bay. Which do you believe would be most effective?

I feel callous for saying this but I find Guantanamo Bay a necessary evil at this time. We are a country at war. I believe that we should wait until our part in this war is over to decide what to do with the detainees. Even after the detainees are dealt with, why close Guantanamo Bay? You spoke of the evolution of its uses. Why not keep it open or at least in US hands in case there comes a day in which we find it to be useful for a different purpose?

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06/06 at 03:14 PM

I find the closing of Guantanamo Bay to be a very interesting topic at this point in our political history.  You made a good point that the easy part of closing Guantanamo Bay was for the Obama Administration to put it in writing.  However, the difficult part is effecting the closure.  In your opinion, do you think that the Obama Administration will encounter more difficulties than they initially expected with closing Guantanamo Bay?  I found it particularly interesting when you discussed the “legal black hole” previous administrations found in Guantanamo Bay.  What is your opinion on the logic of the Supreme Court issuing the precedent that habeas corpus extends to the detainees in Guantanamo Bay when previously it was found that it did not?  Considering the history of Guantanamo Bay I find it interesting that the Court would rule that habeas corpus extended to the detainees.

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06/06 at 04:07 PM

I am in the same situation as Valerie due to a limited background knowledge about the Guantanamo Bay situation. I found this interview to be very informative. I have come to the conclusion that Obama is really in a tough situation as to what to do with these detainees. What I found really interesting is the amount of difficulty the government will have in trying to decide what trial options to pursue for the detainees. I did not realize that if the detainees were to be tried in federal court that they would get all the rights under the Constitution and those rights would work retroactively, such as the Miranda rights. This seems to make the trial process very difficult for prosecutors.

You mentioned the national security court possibly being a means of a detention option. How exactly would that work? Would the court just be a mechanism to justify whether or not we may detain someone for a period of time? Is it basically a more democratic way to justify what is happening in Guantanamo currently? I am just not overly sure what you mean that the national security court may be a detention option.

Also, in your discussion about the CIA interrogation memos you mentioned that terrorists would start training and preparing their soldiers for interrogation methods that we may use and inform the detainees what our limits are. If the detainees know what methods we use and how they take place, how will those methods be effective enough to get the information that we are seeking? It seems to me that if detainees are fully aware of what we will do to them and they know how long they will be water-boarded for example, then we are wasting our time as well as the detainee’s. More or less I suppose I feel that the memos will lead to our methods of interrogation being “toothless” and we will not be able to get information that is crucial to national security and protection of American lives. Are there other options to get the information that we are looking for?

Overall, I enjoyed this interview and feel that it helped me to become more aware of what is actually going on at Guantanamo Bay.

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06/06 at 08:31 PM

Very instructive!  I was especially interested in the subject of the interview as I had considered going to grad school for history, with an emphasis on US foreign policy. Anyways, it was nice to hear somebody discuss Guantanamo objectively, without a political slant. It was also nice to have the complexities surrounding the issue hashed out. I think that most people, myself included, have heard the term “Guantanamo” flung about for years by both the Right and Left, without a clear understanding of just why closing the base is so politically complicated. The Guantanamo “ordeal” highlights the challenges of a traditional nation state attempting to combat enemies that are in no way traditional. As Professor McNeal notes, the detainees are very much unlike previous enemies that the US squared off against during the 20th century. When approaching how to deal with combatants in this new era of warfare, a line should be much more carefully drawn than it was under the previous administration. There is something chilling about placing individuals, based on little more than a hunch, on a terrorist watch list, and then once on, making it next to impossible for these individuals to be removed.  Holding potentially innocent civilians for no other reason than a theoretical “future dangerousness” undermines the moral authority of democratic countries. It also jeopardizes the constitutional rights of US citizens themselves, making it more likely that they will be caught up in the government’s broad protective sweep, subjected to eavesdropping and spying by agencies such as the FBI and CIA. It is understandable that in the aftermath of the September 11th attacks, the constitutional rights of potential terrorists would be a secondary concern and that such practices would be tolerated. Eight years later, however, the continuation of this mindset should be closely re-examined.

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06/06 at 09:09 PM

Professor McNeal,

  Thank you for giving me the opportunity to listen to your thoughts on the Guantanamo Issue. This issue is one that is of great concern to me and one that is near and dear to my heart. I have spent the last five years on Active Duty with the Army and completed two tours in Iraq within those five years. My fiancé and many of my friends are currently deployed to Afghanistan and what concerns me the most is that some of those same detainees that have caused the death of so many of my fellow Soldiers and friends could potentially be released. I am aware that there are some detainees at Guantanamo that should not be there, but they ARE there because there was probable cause to believe they were a threat to our security. I agree that the Obama administration is definitely in a difficult position to determine who should bear the risk and what chances we are willing to take when releasing detainees. In my own opinion, I don’t think our country is in the position where chances and risks should be taken due to our current situation in Iraq and Afghanistan.

  You talked at length about how you thought trying detainees in federal courts was the “best” option as opposed to military commissions and national security courts. How would the adjudication process work in military courts, what are the benefits, would detainees be entitled to Constitutional protections like they would in federal courts and would military JAG officers be appointed to defend detainees?

  Again, thank you so much for your thoughts!

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06/07 at 02:16 PM

I knew nothing about Guantanamo Bay before watching this and now I know only a bit more.  However, Prof. McNeal’s perspective does give me a significant amount to think about.

My initial reaction is to question the integrity of the United States administration overall.  Defining integrity as “what one does when no one else is looking,” it seems that we think the world and all the people in it are blind.  I do not understand how we can act as Prof. McNeal describes even though we purport to have created within our own boundaries, a system that is exactingly fair to the sensitive issue of human rights.  We aspire to run a swift, adversarial process for any person suspected of wrong doing in our country, but yet we hold hundreds indefinitely in multiple facilities around the world.  And we attempt to do so without the same standard of care of guise of accountability because we do offshore.  It troubles me that removing our action from our home allows it change in character so much.  I appreciate the actions of the courts to extend US rights to the detainee’s, not because those people subscribe to our government, laws or ideals, but because the US has said that we believe those rights to be “inalienable” and therefore we should be awarding them to all others.  Not to do so is hypocrisy, action without integrity.

Now, it seems that the government would have its citizens believe that its actions are appropriate because of the war scenario so pervasive in today’s world.  But I am not sure if I can accept that as a validating excuse.  As I see it, each and every person is a threat of something and while I would like the government to stop me and mine from ever getting hurt by someone, I am not sure that I can live comfortably with the liberties that would be taken away in order to ensure it.  So, I appreciate its efforts to identify the threats, mitigate their efforts and dominate international politics in our favor, but I do believe that there is such a thing as going too far and so I ask the government to stop short of that.  Thereafter, we’ll just take our chances I guess.

That general sentiment expressed, Prof. McNeal’s presentation inspired my following thoughts during the segments specifically noted:

Advice for President Obama:  This is more than recidivism that we are talking about.  VA analogy is not applicable when talking about international threats.  Aren’t the stakes too high to do that in this case?

What to do with Detainees?: What about our guiding principle ‘innocent until proven guilty’? I thought that our system believed that it was better to let a guilty man go free than have an innocent person punished but it does not seem like it has operated in that fashion during the last regime.  As Prof. McNeal states that Obama does exemplify this belief much more so than our last President, I hope that we as a nation can return there, in both domestic and international considerations.  It will be tough and undoubtedly opposed, but as Ms. Nadya Chmil highlights in her post “what is right, is not always popular.”

Habeas Corpus: This is the basis of my earlier comment that the US administration puts forth the “war” defense.  I am disappointed that courts previously ruled that our rights didn’t extend to our off shore actions but strangely am not shocked.  Why is it that our government cannot act within our own laws at home and abroad?  This would preclude us from being called on them internationally and be a direct embodiment of the integrity value that I discussed earlier.  I think that the change in ruling is too interesting (Ujala Aftab post) and think that now we finally got it right for Guantanamo Bay and the Air Force base Prof. McNeal mentioned, but wonder where else that decision needs to be extended to.  Once done, shouldn’t it be universal?

Where to Release:  Again we are not acting consistently with our own laws – why do we hold someone that we (or some other country) cannot convict?  I understand that they pose a threat, but so does anybody, and everybody, else.  If we do this injustice to those international threats whom we are scared of consistently but we deal with every so often, what happens to the standard that we (try to) maintain for the domestic threats that we deal with every day?  And if our best solution is to ship these threats off to some other country, why are not humble in negotiating the ability to do so?  A main component of that dealing with another country must be fait, but it seems like we have little-to-none.  I guess that past experience may have predisposed us to think like that, but in improving our international goodwill, we have to be better than that.  In telling other countries to take our detainees and what to do with them, the US wants to have its cake and eat it too.  But if we going to impose our risk on others, we too have to be willing to reward them.  We are in essence buying our own insurance so we must either accurately calculate what is it really worth for us to get rid of our risk or set up our own system of dealing with it?  If we opt for the later, I would ask that it one much improved over the detention strategy currently employed.

Red Cross:  Great argument that those opportunities to get inside camps are now threatened, however. the Red Cross has a legal right to be allowed in.  Is there any accountability measures that can be taken against those nation-states who don’t honor that right?

Terror Lists:  It seems that we began to honor these lists of foreign origin because they deceptively mimic our values and standards, but now that we know that they don’t, why do we still support them?  If they can make it harder for a particular person to get on plane, each and every time that they intend to travel, it seems to me that they are violating that person’s rights.  We should not be subjecting people to this (Dan Puskar post).  Under our system of justice, we would need to go through those checks and balances in order to make sure that the government is justified in continuing to monitor this person, but now we are doing it based on a system that we didn’t set-up and we now recognize as not entirely consistent with our purported mode of operation.

What do we owe detainees?:  It seems unfair that the government is able to virtually take away time from one’s life and not be held accountable for making a mistake in doing so. I too cannot imagine trying to return to the world which you were absent from for a significant period of time without some sort of aid in getting back started (Adam Deluca post).  Our government has enacted policies such as Affirmative Action which attempt to make up for deficiencies in one’s “starting point” so I don’t see why that would not also be applicable when considering a “restarting point.”  In my opinion, In both domestic and foreign scenarios, some sort of reparation is due.

Other Detention Facilities:  As the battle field has seemingly moved more towards the fairness system that we attempt to impose within our criminal justice system, Prof. McNeal says that it is up-to-debate whether or not it is a good thing.  This whole situation is fraught with opportunities for our (and other) government(s) to deprive people of some basic rights as we contradict our own fundamental values, and I guess that it continues to happen that way because even here, some of those who are most knowledgeable don’t take a stand in saying that it is wrong.  Or is it just that those who have the power don’t really listen?

My apologies for the length, order and lack of true questions, but I thank you for the opportunity to share these thoughts.

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06/08 at 03:17 AM from UP

Professor McNeal,

  Quite interesting…there are several factors that have shaped my already prevalent thoughts on Guantanamo after watching your interview. I would like to first start by saying that I do believe terrorism is real, and I do believe that America is threatened.  However, we are also trying to colonize another part of the world and Guantanamo is just an extension of this colonization.

  American histiography: Every time a Western nation seeks to extend its capital a lesser group suffers.  Take for instance the plight of Native Americans, or African Americans, or the Japanese in WWII (which is a little different because of the Pearl Harbor attacks), and now Mexican immigration.  In each of these circumstances law and order took a back seat to bounty.  Guantanamo’s no exception, indeed as you mentioned Professor McNeal Guantanamo is like a Black Hole.  The men and one woman who were or were to be detained at Guantanamo were as much casualties of our great Middle Eastern expansion as some were actual terrorists. There were 800 people who passed through Guantanamo during the Bush years, but we only have tangible evidence on 61?

  When I was a kid I visited the World Trade Center almost annually during my trips to New York for dance competitions and school trips.  I was there in ‘93 when two men ignited car bombs outside the Center.  I was also there and thus an evacutee when pipe bombs went off in the building, another time there was a woman with a bomb strapped to he body outside the buildings, and I even witnessed an evacuation due to a bomb in a child’s stroller.  I knew before September 11, 2001, that people wanted to blow up the World Trade Center and for that matter world commerce.  Why didn’t the Pentagon? Illegal indefinite incarceration is not going to change the breach in national security that our government created.

  I would also like to correct something that was said about Haitian detainment at Guantanamo.  From the late 80’s through the early 2000’s Haitian and African immigrants were detained at Guantanamo.  Their detainment had nothing to do with a possible threat of AIDS and their spreading it on American soil.  This misconception is something that people from these cultural groups still contend with on a daily basis.  At the same time other people suffering third world poverty from Cuba and the Dominican Republic were granted American amnesty. They were placed at refugee bases in southern Florida until they could be placed into federally funded housing.  The only difference between both sets of immigrants were the political pull(s) of their countries, i.e., ‘sticking it’ to Fidel, or the lack there of (Africans and Hatians), and race.  Under the first Bush administration a staffer leaked that the threat of HIV and AIDS in the Hatian population at Guantanamo was a farce, and a tool to justify not letting Hatians legally immigrate into the country. In the late nineties, George H. Bush apologized for the treatment of Hatian immigrants at Guantanamo during his administration.

  Guantanamo has always been the place where the American government threw out its non-descript trash, metaphorically speaking.  The indefinite detainment of hundreds charged with no actual war crimes is an extension of this pitied and illegal policy.  I would agree with you Professor McNeal on our sending back innocent people who have been detained, but I fear the risks to these peoples’ safety are just too great. I don’t forsee a man’s return to Pakistan after a four year stint with ‘The Infidels’ going over too well.  Human rights and justice should be the focus for our government moving forward.  We created this problem and we have to fix it.
Thanks for the information, and you did great on the interview!
Ashante’

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06/08 at 01:49 PM

There is much discussion on the topic of what to do with Guantanamo detainees after it has been concluded that they should be either released or transferred from the facility. There is a great deal of discussion as to where to “transfer” detainees if it is decided that Guantanamo is no longer the most efficient or politically viable location for them. But not too much is offered in terms of what to do with detainees that are considered continuing risks. This is the crux of the public debate going through the media. It is offered in the interview that the U.S. could simply ask foreign allies if detainees could be transferred to those nations, which seems to make as much political sense as keeping Guantanamo open itself. Instead of angering the international community about detaining suspected terrorists at a detention center not on American soil, we should simply ask other nations to shoulder our burden? This does not seem to make much sense, either logically or politically. Another alternative that is offered, albeit instead considering detainees that should be released outright, is to release them in the nations where they were detained, Afghanistan or Pakistan. This course of action also seems to make little sense. As Professor McNeal states this runs the risk of angering these two nations, both of which are vital to our foreign policies in the region, although it should be pointed out that regardless of the amount of aid the United States has given both countries in the past and as a part of the new Wartime Spending Bill, both nations are plenty upset with the United States as is, especially with the recent air-raid mistakes chronicled by the media in Pakistan. I think the most viable solution to the problem of what to do with detainees at Guantanamo that are said to still be national security risks is to simply incarcerate them in prisons within the borders of the United States. Much has been made of this suggestion in the media as of late and it has been framed as an issue of national security, as Republicans would have the American public believe. But with dozens of terrorist suspects already in a federal “super- max” prison in Colorado and seemingly no complaints or problems, my question is what is in fact the problem with this suggestion? The rationale against this suggestion as been debunked as “idiot conservatism” by the most cited judge in the history of American jurisprudence and a well known conservative, Judge Richard Posner. The arguments that housing these terrorists within the U.S. would threaten national security are simply overblown in my opinion and is just a political argument being forwarded by Republicans to try and hinder an idea of an opposing Democrat.

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06/08 at 02:49 PM

Like so many of my classmates, I was very uninformed of the mess we have found ourselves in at Guantanamo Bay. I must admit, however, that being uninformed is a result of my conscious effort to avoid the subject. Everyone remembers 9/11; we all remember where we were at, the friends that were closely affected, and the fear that was instilled in every American that Tuesday morning. Specifically, I remember the rage we all felt, the need to point the finger at someone and to do whatever it took to prevent yet another devastating attack. Now, eight years later, we (as a nation) are trying to point a finger at people who initiated the operation of Guantanamo and the people who continue to keep Guantanamo running.  While Guantanamo seemed to instill a sense of security to the citizens of the United States, the way in which it was established and continues to operate place the administration and the courts in a major dilemma. It is very apparent (at least from watching these interviews, reading Professor McNeal’s blog and works from other individuals mentioned in his blog) that the laws have changed since 2001, and the way in which these detainees are detained is no longer acceptable.  However, the solution(s) to fix the problem we now face is not only unclear, any solution is what McNeal calls a “chance”.  This “chance” component epitomizes the catch 22 the United States currently faces.  We may be detaining people who are innocent, however if we release these individuals and they conspire against the United States, we are all affected. We may never know for certain who, after being released, will cause harm against us.  However, the first step in deciphering who poses a severe threat is to charge and try the detainees.

  The process of charging and trying the detainees is the source of one of the many problematic debates. While reading Professor McNeal’s blog (the link is found to the left of the interview), I came across a letter from Andy McCarthy, “a former federal prosecutor who most notably was involved in the 1993 World Trade Center bombing case” who rejected Attorney General Holder’s offer to join the President’s Task Force on Detention Policy.  McCarthy references three possible solutions that can be implemented in order to deal with the Guantanamo issue. He states: “For eight years, we have had a robust debate in the United States about how to handle alien terrorists captured during a defensive war authorized by Congress after nearly 3000 of our fellow Americans were annihilated.  Essentially, there have been two camps.  One calls for prosecution in the civilian criminal justice system, the strategy used throughout the 1990s.  The other calls for a military justice approach of combatant detention and war-crimes prosecutions by military commission.  Because each theory has its downsides, many commentators, myself included, have proposed a third way: a hybrid system, designed for the realities of modern international terrorism—a new system that would address the needs to protect our classified defense secrets and to assure Americans, as well as our allies, that we are detaining the right people.”

  I have to agree with McCarthy that the most effective solution is not found in the current either-or dichotomy (federal courts tried by jury or tried by a military commission) our nation has to choose from. Furthermore, I do not think (again, my knowledge in this subject matter is lacking) that a promise to find a solution within one year will foster an environment that will allow experts to establish a more effective, practical, and reassuring solution than the two most frequently found (and were previously mentioned).

  I realize I went off on a tangent, so to bring this comment back to Professor McNeal’s interview. Not only do we not have a solidified solution as to what to do with these detainees, we have no idea how the rest of the world will cooperate or support the government’s decision. The issue of how to try these individuals is merely the tip of the iceberg. Once we decide how these individuals will be tried, then what? Professor McNeal acknowledged that many countries would only allow these detainees back into their country if there was something in it for them. So, not only will we be releasing individuals that we once thought was a threat against the United States, we may be pressured into agreements that we otherwise would have not entered. 

      While I feel releasing these detainees (especially within one year) may do more harm than good, I agree with Professor McNeal that the problem should be viewed as two individual sections (policy regarding current detainees and policy establishing what to do with future dangerous enemies). However, I do have a question regarding how to deal with the detainees who are already in custody, and the question stems from the “Advice for President Obama” segment. When Professor McNeal states, “don’t use your political capital in dealing with the 120 who are no longer a threat”, and then continues to talk about putting the 120 in the ex ante position in the country they originally came from, does this mean that the U.S. should just deport these 120 individuals without even talking with the countries first? Furthermore, McNeal then suggests that after the U.S. deports these 120 individuals, (and in doing so probably frustrating the countries they were deported to), the U.S. should present the cases of the 65 remaining detainees to the United Nations and seek assistance in dealing with the dangerous individuals. My question is, if the U.S. upsets these other countries by deporting the individuals who, even though are now deemed not to be a threat, were once considered dangerous, how much support can the U.S. expect to receive when dealing with the 65 extremely dangerous individuals?

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06/08 at 04:21 PM

I found professor McNeal’s interview to be insightful, particularly with regard to the history behind Guantanamo. I am always fascinated by the manner in which laws can be circumvented.  What I find strangely peculiar is the fact that, while the Bush Administration was finding loopholes to establish a means to detain individuals in a manner which seems to blatantly contradict the Constitution, no one had the foresight to consider the future negative implications of such a facility.  The idea that a detention center, like Guantanamo could be “above the law,” so to speak, is somewhat frightening.  And while the Supreme Court has ruled that individuals who are detained in Guantanamo do have standing and the right to habeas corpus, the method in which those habeas corpus tribunals are conducted seems to unfairly favor the Government. 

In regards to the release of the detainees, professor McNeal stated that President Obama inherited roughly 225 detainees.  Within that population, realistically 35 to 40 would actually be subject to face trial by military commission or other federal trial.  It was also stated that roughly 80 of these detainees are dangerous, and if released, could return to their terrorist activities. 

My question is this:  What impact does the detention at Guantanamo have on individuals who may not have been enemy combatants originally, but because of their detentions now harbor an ill will towards their captors and to America?  It seems to me that there is a tremendous concern about individuals returning to terrorist activities, but I wonder if some of those “harmless” individuals held in captivity for an extended period of time might now be just as much of a threat as the “dangerous” ones.

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06/08 at 06:14 PM

I found this to be a very interesting and insightful commentary on Guantanamo. In my opinion, the world has only seen the beginning of the new age of terrorist warfare. Though not favored by many, the Bush administration had to bend certain laws in order to promote the safety of the nation and the free world. Guantanamo may have not been a proper way of keeping the detainees in a place where they could not harm others, but it served its purpose well. Our nation has many enemies and I hope the O’bama administration can maintain the level of safety that the Bush administration did. I feel that the O’bama administration will be able to accomplish this task, but will do it through a rather direct and open stance, rather than the reserved and preemptive stance that the Bush administration took.

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06/08 at 09:54 PM from State College, Pa

Professor McNeal’s advocacy for a replacement of Guantanamo with federal courts having amended rules for terrorists is an interesting theory.  However, Professor McNeal warned the terrorists would have the same constitutional rights afforded to all citizens.  Most controversial seems to be the 5th amendment right not to self-incriminate.  If I understood the interview correctly, the court should not be able to amend this constitutional right.  Such an inability may be more damaging to US interests than the operation of Guantanamo.  As McNeal noted, Guantanamo was chosen as a place to detain individuals to avoid constitutional rights to individuals.  Also noted, after the court reversed the plurality Hamdi decision, Guantanamo and an airbase in the Middle East became required to provide opportunities for “terrorist” detainees seeking relief.  All these observations beg the question: Is Professor McNeal’s position for an amended court proceeding for terrorism cases the best option we have? 

      Although I am not an expert on the subject, my limited knowledge of the situation and options discussed by McNeal leads me to think the specialized courts may not be the best option.  First, McNeal’s warning of terrorists in US prisons is a scary thought since prisoners may easily be persuaded to uphold a jihadist philosophy.  This could be circumvented though if the court creates a separate holding for the convicted terrorists.  My primary difficultly with agreeing with Professor McNeal resides in judicial efficiency.  Simply, the amended court proceedings, the transferring of Gitmo, the debate of where to take the detainees, may be a waste of time considering the rapid advancement of a democratic and constitutional society in both Afghanistan and Iraq.  Professor McNeal discusses the ideal for Gitmo detainees to be tried in their home country.  If it is correct most detainees are linked to operations in Afghanistan and Iraq , then it seems in time and with a responsible government in both countries, that justice can be served in those countries.  And since the United States Military is leading the operations to democratize the two countries the military can easily lobby for a presumption of proof, that McNeal warns about, that is above a preponderance and instead establish the beyond a reasonable doubt requirement. 

    To summarize, given adequate time the United States military’s involvement with both Afghan. and Iraq may create a reliable and responsible government that should try Gitmo detainees.  Until then, no permanent international detention center or amended rules to court proceedings regarding terrorists should be adopted.  Simply put, these permanent installations may become unnecessary or obsolete in the near future, especially with a President advocating the permanent withdrawal of our troops in both Iraq and Aghanistan during his term in office.

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06/08 at 11:05 PM

I thought that this was an excellent commentary on behalf of Professor McNeal, namely for the reasons that it was exhaustive in its breadth, very objective and indeed very thoughtful communicated.  No doubt, Professor McNeal has presented me with far more angles for viewing this gravely complex matter. 

I second Justin Ritter’s comment that Prof. McNeal’s theory of replacing GTMO with federal courts while having amended rules for terrorists seems to be an interesting, novel idea.  It seems impossible to come away from Prof. McNeal’s analysis without having in mind, the idea that the solutions [ whatever they may be ] to this issue, will undoubtedly yield both favorable and equally unfavorable outcomes - in other words, it seems clear that there is no easy answer, and any answer is likely to be met with both positive and non-positive receptions. 

Prof. McNeal’s commentary on the similarities between the current and previous administration on this subject was interesting, and perhaps it is something that deserves to be emphasized.  If these two administrations have similar stances on GTMO, what are they, and to what extent are they similar?  In light of the newly elected executive who promised “change” for the future of the nation, the need for clarifying the distinctions, [ if there are any ] on the stances between the current and the previous administrations on this matter seem to be important for the nation to understand.  How, if at all, can they these two administrations’ stances on GTMO be distinguished? 

Prof. McNeal, poignantly I thought, addressed the issue of U.S. citizens being on particular terrorist “lists.”  Some lists contain names extending into the millions, respecting U.S. citizens.  How is it determined that a person’s name belongs on one of these lists?  If these lists are meant to exist for the purpose of establishing a data-bank of people that the proper U.S. authorities deem to be dangerous to the best interests of the U.S., then it seems alarming, and equally as surprising, that there would be millions of names on these lists.  What can be done to aid those parties who have there names on these lists, so that undue negative consequences are not incurred by them, if they are not in fact threats to the best interests of the U.S.?  I was glad to hear Prof. McNeal address this issue, and thought that it was addressed meaningfully, and objectively. 

Should other countries receive these GTMO detainees if these respective countries are willing to, or should the U.S. bear this burden?  What implications will releasing these detainees into U.S. prisons have on future criminal detentions, and how would doing this reflect on the current administration?  Can U.S. citizens feel safe with these detainees in their backyards?  These are not easy questions to answer, but it seems to be clear, that thoughtful, meaningful analysis is what these questions demand - thankfully, this commentary has in my opinion, provided that.  Hopefully discourse on these challenging questions will continue to be provided by those who knowledge on these matters is exhaustive, and meaningful. 

I am looking forward to the live chat on the 11th.

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06/09 at 01:02 AM

Following up on what I previously wrote, I wanted to express the idea that if as Prof. McNeal stated, one can optimistically look toward the resolution of the GTMO issue, when the Executive is able to actually engage the Legislature, then this seem to be the perfect opportunity for the newly elected Executive to “reach across the aisle” as he constantly touted himself as being able to do when running for the office.  It seems reasonable and appropriate, that to the extent that the newly elected executive touted himself as being able to bridge the nation’s two-party political system of government, he should to that degree, be expected, and demanded by the Congress, to deliver palpable results!  It would be refreshing to see the Legislature demand this degree of performance from him, but what would perhaps be more refreshing, would be to see the Legislature proactively engage the Executive, without waiting for him to reach out to them!

I thought that Prof. McNeal really ‘hit the nail on its head’ when he stated in closing, that the Congress must be proactive respecting GTMO! 

The Court does not represent the nation the way Congress does, and by “sitting on the sidelines” and acquiescing to the Executive, and to the Court’s holdings, the Congress is selling us out! 

Congress is the single most powerful branch of American government, not the Executive, and not the Court - Congress needs to wake up and realize that once again. 

If we don’t want GTMO detainee in our backyards, there is no reason why we should have them there; if we don’t think that torture is acceptable, there is no reason why torture should be transpiring on our watch!  Irrespective of what one’s intentions are for the GTMO detainees, if Congress can stop acquiescing to the Executive respecting this grave issue, real reconciliation can transpire.

I thought that Prof. McNeal’s commentary expounded seasoned, objective, and thorough analysis - looking forward to the live chat on June 11.

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06/11 at 09:24 PM from State College, PA

Very insightful interview by Professor McNeal on the dilemma at Guantanamo Bay.  Just a thought I think it would be political suicide for the Obama administration to release the 120 detainees, which they consider no longer a threat, into the United States because the American people will not be able to accept such a decision.  I feel the best decision is to release the no longer threat detainees back to the where they were found.  Afghanistan and Pakistan will have trouble accepting that decision but both countries receive substantial aid from the United States.  The United States can threaten cutting aid to those countries unless they accept the detainees. 
What will happen to the 40 detainees that are dangerous but the information gathered will not be able to be used against them?  How will they be convicted in a Federal Court if that information is withheld?  Do you believe that the United States will try to convict them on some other crime so that they can be detained or jailed?

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06/11 at 11:00 PM from University Park

This interview was very interesting and led me to rethink the situation at Guantanamo Bay and the challenges that we will face in the future.

One aspect of the interview that I found particularly intriguing was the history behind Guantanamo Bay and how President George H.W. Bush first brought detainees there because it was “a legal black hole”. Though I understand the circumstances involving the release of prisoners today is much different and extremely sensitive given the events of Sept. 11, I was curious as to whether their was a public or political backlash to President Clinton’s releasing of prisoners like there is today.

Additionally, it never occurred to me that terrorists groups may train to withstand torture and prepare for interrogation techniques, as mentioned in regard to the release of CIA Memos. It seems that these tactics become even less necessary in the eyes of those who oppose these tactics if no credible information will be revealed due to the preparation.
Lastly, I find the Terror Watch Lists and the incredible number of people included on them astonishing. It is obviously a difficult situation to deal with. The point that is made about “probable cause” is a frightening especially given the review process for getting off the list. I know “erring on the side of caution” may not seem wrong, but it seems to me that being unable to be reviewed to be removed from these lists violates the individual rights of many Americans. I hope that the process for getting removed from these lists is reviewed, as Mr. McNeal suggests.

Fefu - Federico Ponce de Leon
07/19 at 05:54 AM from Internet, a single world without frontiers

Dear Valerie Potell: A government that has excuses for torturing the foreign enemies will continue doing so, and this leaves the door open to someday apply the same treatment to its own citizens. If a government doesn’t respect your human rights, why should it respect you as a citizen?

Fefu - Federico Ponce de Leon
07/19 at 05:56 AM from Internet, a single world without frontiers

I don’t see the “International Human Rights Laws” as a “problem”, I see them as the exceptional result of a learning process after the second World War sufferings. I don’t see anything wrong with the trial or release approach. What would you think if you are kidnapped for seven years without a fair trial? Do you think is fair to be deprived of your freedom if you are innocent ?

If “there is still a chance” for a detainee to kill someone, and that statement is enough to keep them, what block us to extend the island surface and bring the whole world population to Guantanamo ? . Does it exist an international law for preventive incarceration without trial? Does it make sense? If you have any doubt, please take a look to the Minority Report[1] movie.

Why there is so much concern about the way a foreign administration will handle the prisoners? Would foreign countries be able to comply those policies that US is evidently unable to comply ?

Red Cross release of information happened because:
* the detention conditions were unacceptable to the point that it opened worldwide discussions about the way the prison is being conducted
* concealing that information is accessary (those who may help to conceal that information are also responsible for those tortures and other war on terror crimes)
* mistreat shouldn’t be tolerated and any information related with torture and abuse has to be public

The whole thing about secrecy on government operations is to allow it to do any harm without any consequences nor public surveillance. As a taxpayer, citizens have the right to know if their millions collected are being used to torture others.

No government should need to conceal the torture procedures because they shouldn’t torture their prisoners.

It’s sad to see how law’s black holes are used. If a country declares “War on terrorism”, it’s in war with terrorists. If someone is incarcerated because is suspected of being a terrorist, why he can’t receive the rights of a war prisoner? It makes me remember the way other South American governments behave making people ‘disappear’[2]. During those times (1970’s) presidents said: “They are neither dead nor alive, they disappeared” . These Guantanamo prisoners aren’t guilty nor innocent, because they didn’t have any trial. They aren’t war criminals, but they don’t seem to be civilians since they don’t have Habeas Corpus. The only clear thing is that they are not treated in a humanitarian way. There is a very interesting report about those incidents in the ‘Never Again’[3] Report of Conadep (National Commission on the Disappearance of Persons) - 1984

[1] http://us.imdb.com/title/tt0181689/
[2] http://en.wikipedia.org/wiki/Forced_disappearance
[3] http://web.archive.org/web/20031004074316/nuncamas.org/english/library/nevagain/nevagain_001.htm

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