justice

For Republicans in the Senate the Supreme Court nomination of Sonia Sotomayor is a lesson in the law of unintended consequences and another unfortunate legacy of the mistakes of the Bush administration.

I have occasionally defended some of Bush's well intentioned mistakes, but there's no way to put a happy face on this one, because it is going to put a woman on the highest court in the land who believes that judges should write the laws, that some racial and social groups are more worthy than others, that gun rights aren't really protected in the constitution, that government can seize your property without due process and give it to businesses and that free speech is a privilege granted by government to some and not others.

The problem which faces Republicans in this nomination, is that they will likely find themselves unable to filibuster or oppose Sotomayor with any vehemence because she is hispanic and a woman with a record of flaws which are ideological rather than ethical. Already great pressure is being exerted on GOP senators from party leadership to go easy on Sotomayor to earn some credit with the administration for the future. The fear is that opposition to Sotomayor may cost Republicans hispanic support at a time when they need every new vote they can get and when hispanic Republican politicians are rising on the national stage, increasing hopes for a breakthrough with that constituency.

The irony is that this would not be nearly as much of a problem for the GOP had it not been for a little noted failure of the Bush administration. The seeds of this situation were planted back in 2005 when Sandra Day O'Connor was retiring and Bush floated the names of a number of hispanic judges as potential replacements, including Emilio Garza, Alberto Gonzales and Consuelo Callahan. In each of these cases Democrat Senators told President Bush that he would face a filibuster against the candidate and his response was to back down and look for another nominee who was more acceptable to Democrats. The problem with this morally weak strategy was that it meant that despite his desire to apppoint the first hispanic justice, Bush threw away that opportunity and the chance it provided to score points with hispanic voters and now that opportunity has been handed to the Democrats.

In 2005 Bush should have picked the best qualified of the hispanic candidates -- probably Emilio Garza -- and nominated him and taken his chances with a filibuster. Or he could have nominated the ever-cooperative Alberto Gonzales with the specific expectation that he would be borked for the team. That would have put the Democrats in the position of having to attack and filibuster a hispanic nominee, costing them support in that community and making the administration and the GOP look like they were the ones fighting for the advancement of minorities in government. Even though the nomination might have been blocked the result would have been an enormous boost in popularity with hispanics for the Republicans and a ding on the civil rights record of the Democrats. It's also entirely possible that the Democrats might have been bluffing and would have backed down to avoid seeming hostile to a hispanic nominee.

As in other situations, Bush played politics like an amateur and failed to push what should have been an obvious advantage and the Republican party is still paying the price of that mistake. If Bush had played the situation the right way in 2005 then today Sotomayor would not enjoy the immunity conferred on the first hispanic Supreme Court nominee, the GOP would be stronger overall, and might be able to oppose Sotomayor if their ideological concerns are strong enough. But as a weakened party desperate to be liked, the GOP may very well have to bite the bullet, sacrifice principles again and roll over and accept Sotomayor despite her troubling record. And yes, you can blame Bush for it.

Although I have opposed the use to which the facilities at Guantanamo are being put for years, the plans which the Obama administration is developing to deal with the remaining terrorists held there present problems which they seem not to have considered and which may be unresolvable.

The Bush administration already released about two thirds of those being held at GITMO. They released all the easy prisoners. They sent home the ones whose countries would welcome them and they tried the ones where the evidence was easy to argue in court. Even so, a significant number of those they freed immediately returned to fighting for al Qaeda or the Taliban or resumed engaging in acts of terrorism. What they've left for Obama to deal with are prisoners who are confirmed to be serious terrorist threats, but against whom the evidence is weak or hard to present, even in a military tribunal, and whose home countries will not take them back because they know what diehard bastards they are, and they have absolute confidence that they will be involved in future violence if given an opportunity.

If we take them out of GITMO either permanently or to face trial, we have to put them somewhere. Evidence suggests that our prisons are already a breeding ground for potential terrorists. The recent terror plots in Miami and New York both originated with Muslim converts who had been radicalized in prison. Allowing these terrorists from GITMO who really are "the worst of the worst" into the prison system where they will be treated by some as celebrities and role models could prove to be disastrous. Even in the relative isolation of a supermax facility their influence would be felt; passed on through the several hundred other terrorists already in the federal and state prison system and the underground communications networks of the prison gangs.

The only alternative would be to put them in a completely separate maximum security facility, either built or adapted to house them, inside the US. Although many governors are trying to keep GITMO prisoners out of their states, governors in states with the most severe economic problems might be persuaded to offer facilities in their states in exchange for federal dollars. Michigan's Governor John Engler has already offered one of the two small maximum security prisons in Michigan's upper peninsula for the purpose. Others are also interested, like the town of Hardin, Montana whose city council voted unanimously to welcome GITMO prisoners to their brand new maximum security prison which remains unoccupied after three years of disputes with state authorities.

So despite the "not in my back yard" attitude which prevails in most states when they envision terrorists as guests in their prisons, there are places which are desperate enough for federal dollars and jobs to take the terrorists, so housing them in the US is certainly feasible. However, aside from the technical difference of being on American soil, a supermax prison devoted solely to GITMO prisoners would not be much different from housing them where they are now. They would still be isolated from other prisoners, likely in a very remote part of the country, and held under uniquely high levels of security. No one has ever escaped from a supermax prison in the US, but keeping the prisoners secure is really the least of the problems.

But even if we put them in prison somewhere else, respect for the rule of law and the Constitution demands that we give them fair trials. Yet there's a reason why the Bush administration was only able to try a handful of them. The evidence against the rest is strong enough to convince most people that they really are dangerous terrorists but it is not sufficient to form an effective case good enough to stand up in US courts which have already rejected the kind of evidence the government is trying to use in many of these cases. There's enough evidence to know they are the "worst of the worst" but it's often not the kind of evidence which is up to the standards of a normal American court. Twenty reliable sources may have told us someone is a terrorist and we may absolutely believe them, but without witnesses to acts of terrorism or physical evidence, a trial may well end in an acquittal which should result in the release of the prisoner. Then what do we do? We can't keep him in the US because he's not a citizen and he really is a dangerous terrorist even if not convicted, so he's not about to get a visa. We can't send him home or to another country because they know who and what he is and won't take him. We can't just release him in the wilds of Waziristan when no one is looking, because he'll just start killing civilians and US soldiers as a recent Pentagon report demonstrates. What do we do that honors our legal system and our Constitution and also protects our people and the world?

President Obama admits he doesn't have a solution, saying "there are no neat and easy answers here." He has a plan but it is expected to be unable to provide a real solution for as many as 100 of the GITMO prisoners who cannot be repatriated or freed in the US. The president seems to be leaning towards holding them indefinitely in the US without trial instead of at Guantanamo, and that's really no solution at all. It's still a violation of their right to a trial and some sort of justice. And if they are going to continue to be held without trial, the prisoners might actually prefer the balmy climate of Cuba to a concrete cell in the frozen wastelands of Montana or northern Michigan.

There aren't a lot of other options. We can't set them free in the US, we can't send them home and we can't legally hold them forever without trial. What does that leave?

It's tempting to apologize to the acquitted terrorist, drop him near the fighting in Waziristan or Somalia with an unloaded AK-47 and then turn a blind eye as a soldier -- perhaps a Pakistani soldier for propriety's sake -- with more common sense than our government, shoots him as an enemy combatant. That wouldn't be nice, and the backlash would be horrendous if it leaked, and it's guaranteed to leak.

Or we could take that idea to a higher and even more draconian level that will appeal to fans of the New World Order. Tag them with the dreaded GPS locator chips which are now being put in dogs by the humane society and which some people are suggesting we put in our kids. Then release them in a terrorist controlled area and track them until they meet up with some terrorists and call in an airstrike or a drone with a Hellfire Missile and take them and their friends out. Even less nice, but we might have plausible deniability if we claimed we targeted the other terrorists, not the recently released guy with the chip.

I can think of only one other slightly less sleazy and considerably more humane solution, which will certainly appeal to the administration's legion of lawyers. Let them go through trial, and as soon as they are set free immediately arrest them on a trumped up charge -- illegal immigration comes to mind -- and imprison them again. Conveniently, our immigration laws are so screwed up we could probably hold them just about forever if we can't find a country to deport them to. This really isn't any different than just leaving them in jail, but they do get a trial and we get a legal fiction to hide behind.

After thinking long and hard and not being able to come up with better solutions than these, I do know one thing for sure. I'm glad I'm not President Obama, because even if he has the wisdom of Solomon, I don't think he can find a solution any better than the ones I outlined. He's in a no-win situation and will pay a high price for whatever inevitably unsatisfactory resolution he finally selects.