I’d like to hear what Kuebler’s ideal solution is (and I’d like to hear from Khadr’s two excellent Canadian lawyers, who have won a Supreme Court case for him here). My best thought is a serious commission of inquiry, as in Arar’s case, to which Lt-Cmdr Kuebler could bring everything he knows, which is more than the GTMO tribunal was going to let him do. That wouldn’t be a trial of Khadr, more like a trial of the messes made in at least three countries, Afghanistan, GTMO/the U.S., and Canada — and there are messes in all.

Omar Khadr deserves justice, but so do the people of Canada and of the U.S., and that means we need to know what was done in our names.

Repeal of the MCA should accompany the Obama admin’s forward moves on the treatment of the remaining prisoners, for a host of legal, political, and moral reasons.

Torture, abuse, and blatantly illegal lack of process cannot be an excuse for continued denial of legal process or (worse) newly invented show-trial process that deforms the rule of law by creating a state of exception that will be abused and expanded as the years go by.

And I think its reasonable that Obama make such a request in order for his DOJ to look into precisely whether or not the individual cases can be integrated into the Federal Court system, whether he will order immediate releases because the cases are so tainted by prosecutorial/military abuses that they can’t be won. or if they were ever even warranted.

Then Obama has to decide how to handle the people to be released. Many are going to be excruciatingly bitter and angry. I suspect that some of those already released were initially innocent, and only became violent AFTER the process of Gitmo (the incarceration syndrome where ones associates are primarily or dominatingly hardcore criminals). Others are going to be psychologically damaged; some cannot be returned to their native countries without risk. Some may be willing to accept therapy and alternative release…but there are great issues of whether there is the capability of informed consent here.

Im doubtful the Bush Administration has even done a bit of research about what these individuals would need to allow them to re-enter society ANYWHERE as productive citizens.

A commenter of long standing who participates at Obsidian Wings and is a lawyer defending a number of Guantanamo prisoners had this to say last week:

There aren’t files. No one believes this at first, and it takes a long time to accept it, but really, that’s it: no files. There are databases that can be searched . . .

If what we’re asking the new team to do is go through the data and figure out who was an AQ leader, this won’t take much time at all. They’ve done factual returns (ie, an annotated narrative)for some 200 prisoners in the last four and a half months, and these narratives would include allegations like that if there is any evidence at all, no matter how specious. If instead you want the new folks to go through the returns (and responses) to define just exactly which species of small fry each of the 90% of guys is, then you’re taking time.

Also this:

there are a bunch of parts of the problem — the vast bulk of it — that aren’t difficult at all.

(There’s no reason to let GWB off any hooks at all, btw. In Hamdan, the Supreme Court told him that he doesn’t have the authority he pretended to have, and also that the prisoners were covered by the GC. Dozens and dozens of men are today, right now, being held in conditions that violate the GC. This could have been remedied by the stroke of a pen, and none of the ‘difficulties’ oft identified prevented it. Instead, the President went for a different stroke — signing the MCA — which didn’t bring him into compliance with the law, but simply deferred all accountability.)

There’s also this recent article from the Washington Post about the evidentiary disarray.

This was foreshadowed early on by an interview in November (maybe with Glenn Greenwald, or maybe Scott Horton, can’t find right now) with one of the military officials who resigned from the show-trial apparatus, that was deeply shocking even to me. The officer had expertise in intelligence and investigations, and the interview focused on the apparently deliberate near-total absence of expertise among the show trial preparers that allowed them to be stonewalled by agency after agency when requesting evidence that might be useful to the defense (or even to a competent, good-faith prosecution).

It seems like a fairly clear calculus:

Disadvantages:
– Pardons wipe out 5th amendment privilege, thus allowing full and frank testimony.
– Pardons for torture also start the International Criminal Court clock ticking immediately (the Court can accept only cases in which it can be persuasively argued that the offenders can’t or won’t be tried in their own country).
– There’s also the political/PR/”Bush legacy” cost of the disgust and outrage pardons would generate, and fault for shredding the “gracious and smooth transition” for which Obama has publicly thanked Bush.

Advantages:
– Protection, unnecessary if neither the new administration nor Congress is likely to launch investigations and/or prosecution, and insufficient in the case of torture because it does nothing to stop and actually enhances the chances of international prosecution.
– Some political bump with the 27-per-centers.
– And the gratitude and loyalty of those pardoned — unless the pardons did jump-start international prosecution.

I’d love to think that the signals from Obama-and-friends about not prosecuting were sent primarily to affect this calculation, and to forestall pardons. But it’s far more likely that the pardon-forestalling effect was a handy rationalization for doing the easy thing, going with the elite consensus that there’s something wrong with prosecuting high officials for crimes.

The dishonesty of language like “criminalizing policy differences” makes me crazy. It would be much easier to handle an honest admission of the reasons why they won’t investigate with an eye to prosecution.

I’m also deeply uneasy about the prospect of yet another ad hoc judicial process for defendants accused of terrorist acts. Both David Iglesias’ and Neal Katyal’s appointments, to me, point toward the likelihood of the Obama administration going that route than using the existing options open to them.

The simplistic argument is apparent. One or more of these “worst of the worst” (Cheney’s misnomer – many of whom Cheney referred to as the “worst of the worst” have already been released) terrists will “become linked” to an attack somewhere.

they already tried that

didn’t ya see the report about the “61 recidivist terrorists” last week ???

since the pentagon papers were exposed, it seems like the military don’t even try when they gin up phony reports

no names in the report, no terrorist incidents mentioned, just an assurance that 61 released terrorists had returned to attacking America

what most people here don’t understand is that America is FUCKING SICK AND TIRED of repuglitards that cry wolf

we don’t GIVE A FUCK what the repuglitards are having a hissy fit about

cornyn has questions about Hillary ???

confim Hillary, and tell cornyn to shut his fucking pie hole

the repuglitards got a problem whit Gaither (???)

confirm him and turn the klieg lights on the repuglitards having their hissy fits

we ARE SICK OF IT

does anybody think Peter king has a snowball’s chance in hell of defeating ANY Democrat for NY’s Senate seat in 2010 ???

and after that, you can write king’s political obituary, cuz his congressional seat ain’t gonna exist in 2012

5 repuglitards in the senate are retiring already, and the repuglitard leadership looked like they were walking to their own hanging yesterday. America cheered that event, btw

people are PISSED OFF

and we’re PISSED OFF AT REPUGLITARDS

repuglitards should stop worrying about the Democrats’ failings and take a look at their track record for the past 14 fucking years

but they don’t

the contract on America reached it’s end in 2006, but America still remembers who put the contract on us

impeach Obama ???

come on

I’m the one smokin dope here