The legal boundaries on Guantanamo Bay

>>> there's some of the group of detainees at guantanamo that essentially everyone agrees shouldn't be there. there's not even a contestation. going to a cousin's wedding and picked up because of bad information.

>> i guess i'll be the lone dissenter on that. people cleared by the tribunals shouldn't be there.

>> well, that's a lot of them.

>> i understand that and i concur on that group.

>> it's 86 people out of the 166.

>> and let's just be clear that there's some people that have been cleared under both the bush administration and the obama administration. there's a man there right now cleared by both just sitting there.

>> let's just talk about those 86 first. of those 86 i'm saying, so the problem with them appears to be this problem of where to send them, right? that's the big problem. it's not that -- i mean they have been cleared, they could go, right? but what country wants to take them and of course you can't just move them to peoria. i mean i think you could, but go try to sell that to the -- no, i do. i do. i think we should pay these people restitution.

>> absolutely. absolutely.

>> but so let's put those aside and talk about the legal process that's going forward. right now khalid sheikh mohammed is being tried. he has admitted that he was one of the architects of 9/11, right? the military tribunal process is officially a war crimes process, right? and that is one of the significance of the legal decisions that you've noted where they have vacated two convictions, one under material aid and one under conspiracy because those are not war crimes , right? they're under u.s. code . and there's a battle right now happening between the jag officer and former rhodes scholar who's in charge of running the prosecutions at guantanamo and the administration over whether to continue to try people for things that are not explicitly in the smaller category of things called war crimes . charlie savage has a great piece in the "times" today, a quote from a law professor on general mar tens who is the jag running this. decisions about prosecuting detainees have become what is feasible as opposed to what is rational.

>> and neither of those is about what is legal. this whole rule of law has abandoned in the question of guantanamo . you described it before, chris, you say they're too dangerous to release but there's no evidence to put them on trial. well, in my view and what i think the legal standard of our country has been, we haven't always met it, but supposedly what we're based on if we are a country of laws and not a country of men, as they say, is that if there's no evidence, somebody is not guilty and that means you don't hold them responsible. if somebody is guilty of whether it's war crimes or these civil crimes, and that's a somewhat more esoteric issue, if somebody is guilty, there's going to be some evidence that can be brought into court. if there is no evidence because the only evidence you have is what you got by torture, it means it's not only illegal but it's unreliable so you don't have evidence that they're too dangerous.

>> i think it's really just that if you go and look at the review that the obama administration did, they can't connect a lot of these people to specific incidents.

>> right.

>> to try them for -- their actions for.

>> it's about their institutional affiliations.

>> let alone membership. they can't connect these guys to specific incidents and say you did this and this is what we're trying you for which is why they're reliant on these supporting conspiracy charges which could undo the entire system.

>> let me just jump in real quick because this is an important piece adam brings up. is that because they can't make those kind of connections moving forward for trials, the fundamental question is what are they still doing -- why were they there in the first place, right? we shouldn't get caught up in the legal process moving forward, because legal process moving forward actually belies what people have been saying since 2002 when they first brought them in there is that the majority of these people had no legal, factual or other basis to be put in there to begin and we're literally trying to unplug some of the work that the bush administration had done to get these guys there and we're looking at these legal pieces. now, the political piece of this, which is really interesting, is that the obama administration has a huge rule of law problem. they have got a rule of law problem moving back, meaning that the bush administration officials that were responsible for the illegality in the torture are not being prosecuted. they have a rule of law problem moving forward, which is they're trying to get these detainees through the eye of a political needle called the military commissions and they're trying to figure out what can we electrothrow on them?

>> the process has been constructed around the paul 6 and the court decisions.

>> let's make a broader pointing. i don't agree that rule of law has been thrown out the window. this is how it's important to get this right. as imperfect as the process has been under this president and the last one, if we don't get this right, if we don't get a tribunal process right, if we don't get the mechanisms right for assessing guilt and innocence among these people, that the battlefieldin sent i've is not to capture but to kill. that's something that we have to think really hard about whether we want to do. so accepting all the critiques of the process, it's very important that this happened and i think the obamacommended for attempting to unravel the knot on this.

>> the question is can the process be made right? i think that brings us to the hearing today on khalid sheikh mohammed because she is a special small case of people that was connected to a specific event, has admitted to such. if there was a person who really did commit a war crime , khalid sheikh mohammed looks like the most likely to be that. the question is can the process work for even the best case .

>> and he could be tried in the united states . some get convicted, some get acquitted, some get imprisoned. none have