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.
23 January, 2009
posted by Elliot at 11:11 PM