On September 21, the Center on Law and Security hosted an open forum, “Detainees in America: The Next Chapter of Detention.” Moderated by CLS executive director Karen Greenberg, the panel included Joshua Dratel, a CLS fellow and criminal defense attorney who has served as counsel in terrorism and national security prosecutions, including that of a Guantánamo detainee; Jonathan Hafetz, an ACLU National Security Project staff attorney and former litigation director of the Brennan Center for Justice’s Liberty and National Security Project, who has helped coordinate Guantánamo detainee habeas corpus litigation and represents a lawful resident alien detained indefinitely in the U.S.; and retired U.S. Air Force Brigadier General Thomas Hemingway, who, as legal adviser to the Department of Defense’s Office of Military Commissions, analyzed information on detainees to decide whom to refer for prosecutions.
Hemingway, who came out of retirement to serve as a legal adviser, said that his job was harder than it needed to be, and pointed to what he perceived as the Bush administration’s mistakes, including its failure to implement public diplomacy successfully. Having traveled all over the world to explain the administration’s policies, Hemingway said, “Anytime a brigadier general is your principal spokesman on a matter of international significance, you are in deep kimchi.” Nevertheless, he argued that military commissions were a viable option for trying detainees, saying that military commissions have higher standards of evidence than the International Criminal Court does.
Hafetz criticized the hazy definitions of terms like “enemy combatant” and “battlefield” in the war on terror, and called the post-9/11 treatment of detainees a “torture regime,” expressing grave concerns about the absence of legal protections accorded to defendants in military commissions as compared to those in the civilian legal system. Dratel discussed the detainees' complex situation, which is further complicated by agency competition for cases and the concerns of various policymakers. Both attorneys discussed the difficulties of representing clients of uncertain detention status.
Watch the full video (1 hr, 24 min):
Posted on October 2, 2009