With the announcement that President Obama is going to restart the military tribunal system at Guantanamo Bay, it is now also being reported that the administration is floating in Congress the idea of holding some of the detainees on American soil, indefinitely and without trial.
For many of the detainees which have spent years in US-run overseas facilities without trial will wind up spending the rest of their lives on American soil but without any recourse to the American legal system. The legal rational for what is at its core a system of extralegal detention lies in something that has been discussed for quite a while: a system of National Security Courts.
The courts, which would try detainees without many of the legal protections afforded in criminal courts, would basically be empowered to give the appearance of some level of judicial oversight over the detentions. Senator Lindsey Graham is wondering “how do you hold someone in prison without a trial indefinitely?” The answer for the Obama Administration appears to be that if no legal rational exists, they’ll create one.
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