Pruning Shears

UPDATED BELOW

No Associated Press content was harmed in the writing of this post

On Tuesday U.S. District Judge Ricardo M. Urbina ordered the release of 17 Chinese Uighur Muslims from Guantánamo Bay and most likely caused a near-riot in the White House. His order highlights the increasingly muddled nature of the facility’s existence and, if carried out, holds the potential for an avalanche of bad publicity at a very bad time for the President.

First and most importantly, consider the people behind the paper. The Uighurs and one Abdel al Ghizzawi were all found not to be enemy combatants at the same time by tribunals formed under the Military Commissions Act (MCA). The political repercussions must have been obvious because new, more compliant tribunals subsequently ruled that the very same evidence actually made them enemy combatants. The Uighurs were treated as a single group because, um, they are Uighurs (a completely irrelevant similarity under the circumstances) and al Ghizzawi was split off. The Uighurs ended up before Urbina and ordered released. Al Ghizzawi ended up before John Bates and was told he did not even merit medical attention.

In other words, undesirable findings can be reversed by simply convening a more friendly panel (the MCA was presumably written by avid golfers), and the foregone conclusions dressed up as rulings get wildly different treatment in the justice system. Judges have no case law or precedent to guide them, no philosophy to draw on or judicial framework for interpretation. They go by nothing more than their own sense of what seems right, and preside over courts that exist in a jurisprudential vacuum. Lawyers who attempt to work in this system are almost completely blind to what might be effective, and their understandable frustration is hard to miss.

For instance, al Ghizzawi is represented by H. Candace Gorman, who clarified several points for me via email while I was writing this post. She also has shown astonishing persistence in her pro bono efforts to obtain some semblance of justice. However, a quick look at her ongoing chronicle shows just how much she has had to make her approach up as she goes along. I suspect “improvised” ranks just above “incompetent” in the Adjectives You Don’t Want Characterizing Your Defense category, but in this case what other choice is there?

Al Ghizzawi and others languish in Guantánamo because of politics. Election day is less than a month away and there are barely over a hundred days left in the President’s term. Released detainees could create a political disaster on the former and a legal one after the latter. Think about what happens on November 4th if the Uighurs are released in the next week or two. They will be on American soil and probably giving interviews - imagine the news value of a group from the fabled, mythical Gitmo showing up at the end of election season. I suspect there would be tremendous curiosity over what they had to say about their time in U.S. custody. A rigged system declared them noncombatants, so the story of their incarceration without a shred of evidence would look very bad. Maybe not for the immediate aftermath of the capture, but as years dragged on it would be clear they were kept not because of risks to national security but because of their direct experience of administration policy. Based on the limited information we have I imagine we would hear about extended periods of isolation, sleeplessness, sensory deprivation, extremes of cold and heat, stress positions and other abuses. Done individually or at moderate levels they might not seem so bad, but strung together in succession, done with the intent of finding the fabled 79.9 degrees and related on TV by the actual victim it would generally be seen as torture. The result: widespread revulsion at the Republicans’ preferred approach to detainees.

Also, the President clearly must hear the clock ticking. Once he hands over the keys to his successor he will no longer be able to have the Justice Department file emergency appeals, have the Vice President breathe down someone’s neck or make life for a reluctant bureaucrat sufficiently unpleasant as to make a career change look like a good idea. Considering his historic unpopularity he probably should not expect to have any surrogates going to the wall for him either. He will, for all intents and purposes, go into exile. If he cannot shut down or compromise avenues of prosecution right now he will have to rely on the good will of the citizenry and the forbearance of the next players in Washington to keep him from answering for his actions. Both are possible, perhaps likely, but how reassuring is that? Better to crush it now. Expect fireworks.

UPDATE: See these additional thoughts from Candace Gorman on the nature of the tribunals and the apparent awareness of some in the administration of the potential consequences.