McCarthy: Terrible things happen to people all the time. Terrible things can happen to people being tried in the criminal court system. Sometimes innocent people must go to trial and have to spend an outrageous amount of money to be found not guilty. They don’t get their money back and are not made whole.
Joscelyn: I would challenge him to give the list of who he considers “innocent.” President Obama’s Guantanamo Review Task Force found that at least 95% of the detainees have some note worthy ties to Al Qaeda or the Taliban in the files they reviewed. It did not find that any of the detainees are “innocent.” He is also assuming the judge got it right. There is no reason to assume that. In fact, the few times the Obama Administration has challenged the judge’s ruling they win on appeal. The problem is they don’t challenge a lot of them. I don’t know why for sure, but it may be because they just want to close Guantanamo and get the detainees out of there. Take for example the Chinese Uighurs. They are a group of guys who received training at an Al Qaeda camp from a senior terrorist as designated by the Obama Administration. You won’t see anywhere in the judge’s decision that they were trained by this terrorist. By the same token, I don’t think the Uighurs were among the ‘worst of the worst’ held at Guantanamo.
NRB: Should America hold the Guantanamo detainees as enemy combatants?
McCarthy: Absolutely. We have done it in every single war since the history of the US. No enemy combatant has ever had judicial rights until 2004. How could wars be fought to their possible conclusions unless you hold enemy combatants? In war people are held without a trial. Americans have not had any problem with holding people as enemy combatants.
Joscelyn: Yes. It is completely unreasonable considering the evidence provided by the government to assume the detainees are innocent. The A.D.C. Circuit Court panel said the government could justify their case by having some evidence to suspend the writ of habeas corpus but did not need a preponderance of the evidence.
NRB: What should Americans consider regarding the detainees?
Rotunda: The Obama Administration has said that in some cases there is not sufficient evidence to bring certain detainees to trial. Yet, they maintain, that they (the detainees) are too dangerous to release. The solution Obama proposes is indefinite detention without trial.
Joscelyn: The fact pattern does not support the decision. Reading the D.C. Circuit Court’s opinions they have been scathing for the district judges lack of reasoning and lack of the ability to connect the dots.
McCarthy: The courts had no role traditionally regarding national security. The only role they have had in national security is the one they have usurped in the last several years. Historically the courts have not interfered in warfare.
NRB: Thank you all for weighing in, and we wish you the best of luck with all your future endeavors.