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As Obama Vows to Close Guantanamo, His Advisers Are Reportedly Crafting a Plan to Create a New System of Preventive Detention and National Security Courts

StoryNovember 17, 2008
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During an interview on 60 Minutes last night President-elect Barack Obama said he plans to close the US military prison at Guantanamo Bay and rebuild the nation’s moral stature. Last week, the Associated Press reported Obama advisers are crafting a plan that would put some Guantanamo Bay prisoners in front of a new court system designed to handle so-called “national security” cases. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Michael Ratner, I wanted to play for you, once again, what Barack Obama said last night on 60 Minutes in his interview with Steve Kroft.

    STEVE KROFT: There are a number of different things that you could do early on pertaining to executive orders.


    STEVE KROFT: One of them is to shut down Guantanamo Bay.


    STEVE KROFT: Another is to change interrogation methods that are used by US troops. Are those things that you plan to take early action on?

    PRESIDENT-ELECT BARACK OBAMA: Yes. I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn’t torture, and I’m going to make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.

AMY GOODMAN: There you have President-elect Barack Obama saying he’s going to close Guantanamo and make sure the US doesn’t torture.

MICHAEL RATNER: Well, obviously, I mean, we at the Center represent scores of Guantanamo people, scores of people who have been tortured. And, of course, this is a very, very important statement. I mean, this is a shift. This is someone who I now believe will close Guantanamo and I hope will apply the anti-torture rules to not just the military, but to the CIA and everybody else. So that’s actually very positive.

The negative part is really what we’ve seen come out, floated by ostensibly members of the transition team and others, which are two issues. I called it re-wrapping Guantanamo to make it more palatable, not at Gauntanamo, but maybe here. One is preventive detention, and the other is national security courts. And they work together. If you really look at what Guantanamo was, it’s essentially a preventive detention facility where the United States really tried to give people no legal rights to challenge that preventive detention. Finally, we got into federal court, etc. That’s what it represents: preventive detention and bad, bad court review. So what you see in these new proposals, which are really from — they’re being floated slowly, maybe they’re from academics, they’re from transition people, saying we may need a preventive detention scheme, which is incredible to me. I mean, we’ve have 200 years of a country and never had to have a preventive detention scheme.

AMY GOODMAN: Explain what you mean by “preventive detention.”

MICHAEL RATNER: Preventive detention is really what we see at Guantanamo. It’s when you are put into a prison without being charged with a crime and without having a trial on that charge. It means you’re put into a prison for national security reasons, because you’re, quote, “dangerous.” And in this case, the proposals that seem to be working together, preventive detention and national security courts, are — yes, we may need to jail people because they are dangerous or national security threats, and even for that, their testing of that preventive detention can’t occur in a regular court, we don’t think they’re sufficient enough, we’re going to set up national security courts to do that.

So what you’re really seeing is a re-wrapping of Guantanamo in a legal — in a legal new paper to make it more palatable. I hope that doesn’t happen. I hope there’s huge objections. The idea that this country would go into a preventive detention at this point and special courts, after we’ve been litigating for years to say these people have a right to get into a federal court and we shouldn’t have a preventive detention scheme, is remarkable to me. And I would just — I would really think that while it’s great that he wants to close Guantanamo and end torture, I mean, to set up an alternate scheme is really un-American.

AMY GOODMAN: The Associated Press is reporting that Obama advisers are crafting a plan that would put the prisoners in US courts. Under the proposal, some prisoners would be freed, while others would be sent to trial in criminal courts in the United States. A third group would go in front of a new court system designed to handle so-called national security cases.

MICHAEL RATNER: You know, at Guantanamo, there’s 255 people. The majority of those just should be released. I mean, that’s clear, if not almost everybody. The rest of them should be tried in federal courts. What this floated piece by the AP report is saying, yeah, we’ll try some of them, we’ll free most of them, but some of them are going to be put in these national security courts and held in preventive detention.

The question is, why? What are we doing here? The reasons they give are, we can’t disclose classified information, and maybe we can’t prove that they actually committed crimes. Well, classified information is dealt with all the time in our federal courts. There’s hundreds of trials in which they have methods of dealing with classified information. The other issue is more serious. Yes, they may only have evidence from torture against some people. Well, that shouldn’t be allowed to hold people in national security courts or in regular courts. In fact, if anything, national security courts and preventive detention, in my view, will encourage torture, because you’ll have special ways of holding people without being able to suppress the evidence. I mean, it’s amazing. What they’re taking is essentially a made-up problem, much like the ticking time bomb, and trying to build an entire superstructure of preventive detention and national security courts on top of it, when we don’t even ever have one of those so-called ticking time bombs.

AMY GOODMAN: Michael Ratner, I want to thank you for being with us, president of the Center for Constitutional Rights.

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