As the Obama administration said on the very day they announced the closure of Guantanamo Bay within a year, there is one major outstanding class of detainees at Gitmo: those they cannot try in regular courts and those they cannot release due to dangerousness.
Most of the focus that I’ve seen indicates the major factor complicating the trial of these detainees in Article Three courts is that the evidence against them is classified. This means either that it was obtained through highly secretive intelligence operations or through coercive means.
But Matthew Waxman, a former Bush-era lawyer at the Pentagon, who reportedly clashed with lawyers from Dick Cheney and Don Rumsfeld’s offices from 2004 to 2005, today laid out another scenario in which a detainee is nearly impossible to try in an Article Three court, and this involves geopolitical and diplomatic realities.
Waxman, speaking at a forum at Georgetown Law School sponsored by the Constitution Project, asked the audience of about 100 people to imagine a country called Waxmanistan, which he said bordered Afghanistan and had problems with al Qaeda terrorists operating along that border.
I wonder which country he’s talking about.
Waxman then said to imagine a detainee seized in an operation in which the U.S. military operated within Waxmani borders using intelligence given to them by the government of Waxmanistan, on the condition that the U.S. not admit where they got the intel or that they operated on Waxmani territory.
“Criminal prosecution would be extremely difficult in that circumstance,” Waxman said.
— Jon Ward, White House reporter, The Washington Times