Congress Making Guantanamo Violations Worse

Funny how electing a constitutional law professor as president has led to the rule of law at Guantanamo getting worse.

Scott Lemieux at Lawyers, Guns and Money:

As the Obama administration’s ability to attack Libya without congressional authorization reminds us, Congress has largely abdicated its constitutional role to legislate on military affairs. The good news is that this year’s National Defense Authorization Act is an exception. The bad news is that the legislation would restrict the president’s ability to transfer prisoners being arbitrarily held at Gitmo. Even worse, these restrictions involve Kafkaesque requirements to prove the impossible while also holding detainees effectively responsible for the actions of unrelated individuals. Jamie Mayerfeld lays out the problems in detail:

Imagine yourself under arrest and locked up. Having committed no crime, would you be confident that your innocence would set you free? What if the government imprisons you not for something you did but for something you might do? Could you prove that you pose no future threat?

Such a scenario seems outlandish, yet it is precisely the logic behind legislation that Congress is getting ready to enact regarding Guantánamo detainees. The bill passed the House of Representatives and will soon come to a vote in the Senate.
Individuals never shown to be dangerous, much less convicted of a crime, must remain in U.S. detention unless our government certifies that they cannot cause harm in the future.

[...]

Former detainees include Murat Kurnaz of Germany, whose imprisonment was justified on the grounds that his friend had carried out a suicide bombing in Istanbul.
Leaving aside the oddity of detaining Kurnaz for something his friend did, it turned out that his friend never took part in the bombing, but was alive and well in Germany. Although internal Pentagon documents dating from 2002 cleared Kurnaz of any link to al-Qaida or terrorist activity, he was kept in detention and tortured for the next four years.

Such stories remind us why we must honor the presumption of innocence. Congress would reverse this principle, forbidding the release of any prisoner unless his harmlessness, not just now but in the future, is publicly certified.

But that is not all. The legislation also bars a prisoner from being transferred to his home country or a third country if another detainee previously sent to the same country went on to commit a terrorist act — another instance of guilt by association.

For reasons Ben Wittes explains, the Obama administration’s feckless, passive-aggressive response hasn’t helped matters either. But it’s telling that when Congress finally decides to take the initiative, it is to restrict human rights rather than to protect them.

Liberals know strong democracies don't have to undermine the constitution and rule of law to deal with threats whether foreign or domestic.