Terrorist Court

President-elect Obama wants to make good on his promise to close the detention facility at Guantanamo Bay. The question has always been, how do you do that?

President-elect Obama's advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice....

Under plans being put together in Obama's camp, some detainees would be released and many others would be prosecuted in U.S. criminal courts.

But there is a subset of detainees who are being detained as the result of classified information: Information, that if revealed in open court, would reveal methods, practices, and individuals that may very well be detrimental to our counter-terrorism intelligence gathering.

For this group, President-elect Obama is proposing a new type of court system.

The plan is likely to involve the creation of a new, hybrid court that would combine elements of existing military tribunal system at the naval base in Cuba and criminal courts....

A third group of detainees – the ones whose cases are most entangled in highly classified information – might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks.

The problem here is that this doesn't really solve the problem; it just moves it.

Laurence Tribe, a Harvard law professor and Obama legal adviser, said: "I think the answer is going to be, they can be as securely guarded on US soil as anywhere else. We can't put people in a dungeon forever without processing whether they deserve to be there."

Many Democrats have argued that giving these detainees anything less than full Constitutional Rights at their trials is unacceptable. Yet

"There would be concern about establishing a completely new system," said Rep. Adam Schiff, D-Calif., a member of the House Judiciary Committee and former federal prosecutor who is aware of the discussions in the Obama camp. "And in the sense that establishing a regimen of detention that includes American citizens and foreign nationals that takes place on U.S. soil and departs from the criminal justice system — trying to establish that would be very difficult."

So how does one keep dangerous terrorists under lock and key if the evidence against them can not be revealed in open court?

There are a number of detainees we no longer want to keep at Gitmo, but no country wants them either. If we bring them to America, and that problem still exists, do we release them on US soil?

And how about those that can not be prosecuted because we are unwilling to reveal the origins of the case against them in open court. Do they too get released in the US if there is no place that will accept them outside the US?

I suspect many agree Guantanamo is not a great solution. But what is the real difference between holding these people there or here?

The problems remain the same.

Perhaps President-elect Obama and his team will arrive at a solution that is both equitable and maintains security.

Or perhaps, now that it is no longer President Bush deciding that some need to be locked away without the benefit of a trial that conforms with the US Constitution, it will be OK.

UPDATE: Ed Morrissey points out that the Supreme Court has invalidated the type of court system Obama plans. Twice.

...the point of military tribunals was to establish a system that protected American intelligence in the war on terror.  The Supreme Court rejected those restrictions in the military tribunal system.  They’re not likely to sign off on a civil system that adopts the same restrictions.

Even without the obvious security issues of bringing terrorists onto American soil, these questions will continue to haunt the processing of these terrorists.  The Supreme Court left the US in the position of either blowing the cover of intel resources by forcing the government to provide constitutional protections to enemies of the US at war with our nation, or releasing them to plan more attacks.  Either Obama or McCain would have to deal with that ridiculous position, and so far, Obama seems to be pursuing the same basic strategy that the Court rejected twice.