Your headline is a little off, but the sentiment is right on target.

Posted by Catzmaw on 13 June 02009 @ 8am

I couldn’t figure out how to get the four elements (11-year-old, terrorist, Guantanamo, released) in there, so I hoped this would do.

Posted by Waldo Jaquith on 13 June 02009 @ 12pm

I’m certain the Chamberlin/Carter/Obama appeasement method will win us friends rather than contempt.

Posted by will on 13 June 02009 @ 5pm

will,

So, you’re saying that it’s appeasement to free wrongfully detained people?

I don’t know what world you live in, but in my America, we stand for liberty and justice and freedom, all of which you appear to hold in contempt. Or perhaps you just cower, worrying that by holding to our ideals, we’re putting ourselves in harm’s way. Either way, it’s deplorable.

Posted by Ben C. on 13 June 02009 @ 8pm

Waldo,
People in the U.S. are wrongfully imprisoned all the time, so should we no longer care about public safety?

Not saying that this incarceration is a proud moment in military history, but I do get the sense you are cherry-picking.

Posted by J.R. Hoeft on 15 June 02009 @ 8am

J.R. — you boil our criminal justice system down to a false dichotomy, one where we must either be willing to incarcerate the innocent “all the time” or surrender all public safety. It’s fortunate that every serious legal scholar since the Magna Carta has rejected the premise of your argument, as this is precisely why we have due process rights enshrined within our Bill of Rights and recognized in established criminal procedure. Far from the concerns of some conservative commentators that observing the rights of the accused makes us “soft on crime” or “terrorist sympathizers,” these due process rights serve a greater public good by legitimizing our criminal justice system, demonstrating up front that we will make every reasonable effort to protect the innocent from wrongful prosecution while punishing the guilty for crimes committed.

Unfortunately, the previous administration didn’t understand the greater public good served by due process rights, and so they attempted to strip as many of them out viz terrorism suspects as possible. Small wonder that we’re incarcerating children without charge for years as a consequence, or that most of the world (including our allies) find our detention centers and courts at Gitmo to be illegitimate.

Posted by Sam on 15 June 02009 @ 9am

Sam: There’s an easier (albeit longer and less snarky) answer to J.R.’s very interesting question, which I interpreted as asking about the difference in attitude towards wrongful imprisonment at GTMO and domestically, especially with regards to the possibility of a return to crime/terrorism. The difference between the two situations lies, at its most general level, in the difference between equal protection and due process.

Due process is concerned with fairness between the individual and the state. When a violation of due process occurs, it is because the power to regulate, for lack of a better term, does not exist. Equal protection is concerned with disparities in treatment by the state between classes of people. When a violation of equal protection occurs, it’s because, while the power to regulate exists, the exercise of that power was done incorrectly with regards to the treatment of the class of people.

It’s pretty clear that certain groups of people, generally divided down racial and socio-economic lines, are more frequently wrongfully imprisoned. Indeed, McKlesky v. Kemp presented just such evidence (not that the holding of the case is particularly relevant here…oy). So the claim with domestic wrongful imprisonment is not that the state cannot prosecute and seek imprisonment or other punishment. The claim is that that power is wrongfully wielded, divided by group. In other words, we’re talking equal protection. There are often due process claims in individual cases, but across the whole of the American criminal justice system, when we’re generalizing wrongful imprisonment, the first thought is going to be equal protection.

The claim at GTMO was that the government did not have the authority to do that which it did. That’s due process; we didn’t have the authority, constitutionally. It’s a bit subtle, but domestically, the authority is there, wielded incorrectly due to racial/socio-economic divisions. At GTMO, the authority was never there to begin with in the system that lacked the principles of an American due process compliant system.

But it’s an interesting question, J.R., because the issue is most definitely not as settled as Sam so blithely dismisses it as, especially given that the overwhelming majority of criminal prosecutions are at the state level. (Remember, boys and girls, we’re a federalist system.) While there’s agreement that we can’t wrongfully imprison people, but we still need a strong system, we have no settlement, even within a state, about how to manage, for example, prosecutorial discretion, which is arguably where the problems start (or can be eliminated before they begin). This is a huge problem, because prosecutorial discretion is virtually unregulated at the federal, state or local levels. Remember, p/d lets you not only pick if you prosecute the case, but what you charge, if and what you accept in plea bargaining, what you push for in sentencing in the context of the sentencing guidelines, (including the death penalty, which the prosecutor has to request) and, in 15 states, to transfer a case from Juvenile to adult court. 85% of the final decisions to do that in those 15 states are made by the prosecutor.

I disagree that Waldo is cherry-picking, but there is definitely less focus on the post-release issues facing those wrongfully imprisoned in the United States, and a lack of consensus on how we can manage the chain of criminal justice as to an individual so as best to ensure the effective administration of justice domestically. What I think J.R. is saying, and forgive me if I’m wrong, is that we all are screaming that GTMO is this horrible, horrible evil place of evil, doom, and dead kittens (and I’m not saying it’s a paradise, believe you me), but we can’t seem to find that same consensus or even focus on our own citizens, the criminals, wrongfully accused and those living in the communities the wrongfully and correctly accused are released into.

My disagreement is, of course, that it’s Waldo’s blog and if he wants to talk about GTMO instead of writing an article on what I’ve just laid out, god bless him, I’ll read every word. That’s not cherry-picking, that’s a narrow focus for a blog article on a story that interests him.

Posted by Genevieve on 15 June 02009 @ 11am