23 January, 2009

Why not close Guantanamo?

In the comments section of the last post, Cassady wonders "what does it really matter if they [detainees] are in the country proper or in Guantanamo?" and challenges anyone to provide a defense of Camp X-Ray.

The reason it mattered whether or not the prisoners were on US soil or in Guantanamo was that the Cuban prison served as a legal netherworld. Prisoners there weren't subject to US laws and legal constraints, so the argument went, and neither were they subject to Cuban laws, since Cuba has no jurisdiction over the base in the terms of the original treaty. Thus, legally, the detainees didn't exist.

This was a nice idea until the Supreme Court ruled that in fact detainees in US custody did possess certain basic legal rights such as the right to challenge their detention in American courts. Once that ruling occurred, there really was no logic to Guantanamo: we got all the bad things associated with it (damage to our image, recruiting tool for extremists, etc) and none of the "good" (indefinite detention subject to no laws of any country). At the end, even Bush realized this and said the base should be closed.

Spencer's point that by closing Gitmo we may be releasing people who wish us harm back into society is exactly the one that people like John Cornyn are arguing. Call it the Willy Horton argument: do you want Khaled Sheik Mohammed to be released into your home town?

Which I guess is a reasonable enough concern, in theory. But in practice, the reason why KSM poses such a conundrum is because all the legitimate evidence we have against him (which I understand is copious) is basically worthless in a real judicial system because the man was tortured and the evidence obtained under duress. One should note that there is a difference here between the right to torture and the right to detain indefinitely. Torture is never acceptable and usually counterproductive. Indefinite detention, however, is a mainstay of war - prisoners of war, under the Geneva Conventions, do not need to be tried by any court. They do, however, need to be treated with a certain standard of decency.

Bush, of course, defended the mistreatment of prisoners on the grounds that they were not traditional prisoners of war. But there is a obvious compromise that both upholds our values and maintains the flexibility we need to keep those like KSM from being released onto the streets: define those captured in the fight against terrorism as prisoners of war, meaning that we at once eschew the use of torture (which is ineffective in intelligence gathering) and maintain the right to indefinite detention. This being fully consistent with US and international law, there is no need for legal netherworlds such as Guantanamo or shadowy CIA renditions.

There are two points against this that I can think of. The first is that while such a system would be fine going forward, it is still the case that we have in our custody people like KSM whom we have tortured and whom we thus probably have no legal right to keep in detention. The second is that keeping people as prisoners of war necesitates that we are at war as declared by Congress (which we aren't) and that at some point, there will be a recognized end to the hostilities (or at least, such has been the case up until now). The first I feel like we can get around through legal maneuvering and appeals to our allies to take released detainees into their countries. The second is much more profound - are we at war? if so, how will we know that it has ended? - and gets to the heart of the challenge terrorism poses to open societies. Do we fight it as we would a criminal conspiracy, with police actions? - in which case, I don't see how we detain suspects at all, since evidence is usually circumstantial at best. Or do we fight it as a war, even though such a war would have no discernable end-point? I really have no good answer to that question.


Cassady said...

I should say that I work from the assumption that having Guantanamo open even pre-Supreme Court decision was wrong, so while I understand why it would be convenient for our old administration to have this limbo-realm, I'll remain a staunch critic of such.

I guess my question was meant more specifically--now that Gitmo WILL be closed, and we know that those prisoners DO have rights, as regards the prisoners we will keep in detention for the time being, what does it matter if they are in the US awaiting trial or at Gitmo? There are some prisoners we'll have to release, and I'll get to that, but there are some we'll still have grounds to hold (the ones we didn't torture yet) and those are the ones who should await trial in American courts.

I think the larger question you posed is the more challenging ideological struggle Obama faces as he takes on cleaning up our image. I for one don't think committing to a vague and never-ending state of war is foolish and counterproductive toward that end. That would be tantamount to saying, "we love the rule of law, but we want to make sure we have special rights over certain people."

I think it may be appropriate to draft new rules--openly and pronuncedly--about how terror suspects can be detained, how to determine their relative threat (propensity to terrorize?), and such, and to act on those immediately. However, we've always had rules that say we can't act retroactively to charge someone, so that brings us back to the prisoners we have and have tortured.

I see no easy way around it. We need to release them, and release them quickly if we a law-abiding society. I think we will be able to release them to other countries with reasonable ease, but whatever our concerns, Bush screwed the pooch for us, and we have no right to hold them anymore. Way to make America more secure.

Another thing--I'm almost positive that the original treaty stipulated that America recognize Cuba's ultimate sovereignty over the area, and that's why their main argument for regain the territory is that we are in breach of contract. Couldn't they also have gone to the world community, saying "we don't want the Americans torturing people on our land?" I think that might have helped stop the abuses, actually.

Cassady said...

Ylesias has good comments on the 23rd echoing Elliot's.

Elliot said...

I think Cuba has "ultimate sovereignty" over the base in the sense that the treaty used the euphemistic language that we are "leasing" the property from them - and, indeed, we continue to send them checks for the lease every year, although Castro rejects them out of principle. However, that doesn't mean that Cuba has any legal jurisdiction as such.

In the end, I think you're right: we will need to draft new rules to respond to a relatively new (though not as much as some would have you believe; Dostoevsky wrote about the challenge of nihilistic terrorists to free societies) phenomenon. I laid out my proposal for the broad outline of such rules in the post: explicitly condemning mistreatment of prisoners while creating provisos for indefinite detention in certain cases. The FISA courts could be used as an example of classified oversight for those making the decisions about who to detain and why.

The most important things for any new legal regime, it seems to me, are to 1) clearly and loudly disavow torture or other fundamental violations of human rights, 2) make explicit the rationales and operating principles of the new detention regime in order to eject the capriciousness of the past eight years, and 3) provide for effective oversight, most likely through a court that evaluates whether (1) and (2) are being followed.

Cassady said...

I agree with you completely, and really good reference!

I think one of the most important steps we can take right now is to very immediately and definitely lay out what is torture (and I'm also favor of a BROAD definition of such) and to condemn it wholeheartedly. That process has begun, thankfully, and I'm hopeful the next big steps the new admin takes will be more of the same positive notes.

I think #2 is probably the most important part of the whole process. I honestly think I'm ok with indefinite detention--although I want the practice to be more constructive than simply a state of limbo. Granted, I have no idea how to "rehabilitate" a terrorist to love America, but I have to think that something can be done besides completely removing them from society until they die.

So, as you note, I think we simply need to say on what grounds we will hold terrorists indefinitely (and without trial?). Even if that comes down to the fact that they are not conventional soldiers, they don't abide by any rules of war, and by definition they target civilians with the expressed intent of inspiring terror. Thus, they are a danger to civilized society and in some way must be removed from said.

My parenthetical is more tricky, obviously. What to do with these bad people? I'm afraid I have no real answer at this point, but I'm working on it, as I'm sure are you all.

Cassady said...

Side note:

I have to apologize for my bad writing in both my original and latest posts--"I for one *don't* think that committing..." should be I, for one, DO think;

and I'm also IN favor of a broad definition of torture.