On the Contrary

Let’s step back a minute and consider our problem.  In the American tradition of justice, if you are accused of crime, and by right of habeas corpus they can’t just hold you, they must present their charges, you are entitled to a fair and speedy trail.  In the “war” on terror, if it is a war, then enemy combatants must be treated according the Geneva Conventions and can be held as prisoners of war until there is a resolution at which time they will be repatriated.  The exception here is when war crimes have been committed.  This is where the military tribunals come in, but these are like Guantanamo, tainted procedures.  Now the first problem with this construct is that the “war” is indefinite and there is no country involved.  That raises the issue of holding combatants indefinitely and having no country to repatriate them to when hostilities are finally resolved.

Then there is the approach of looking at terrorists as criminals and charging them with crimes against the state either in federal courts or military tribunals.  Now the problem is you can’t have it both ways because the Geneva conventions pertaining to war do not allow POWs to the tried in civil courts as criminals.  The approach we are taking seems to be the criminal approach in respect to the Guantanamo and other detainees.  Guantanamo presents a particular problem because detainees were originally moved there, and some were tortured, to be outside the jurisdiction of our federal courts.  Not too long ago both Democrats and Republicans were on the same page about Guantanamo, and that was that it needs to be closed because it is a symbol of our own failed values.  Now in order to close Gitmo, the detainees must either be repatriated or tried and incarcerated in federal facilities in the U.S.  There is the rub.

Now I wrote yesterday about the problems repatriating or trying these folks in our federal courts.   Today I would like to talk about military tribunals and preventative detention.  Military tribunals have a place when you imagine that the evidence is classified and members of the jury as well as the judges and lawyers need security clearances.  The problem with them is that in their present form they have been so slanted in favor of the government that no one believes the detainees will get a fair trial.  Now there are many who don’t care.  These guys are terrorists aren’t they?  And the answer to that is some are and most are not.  President Obama has promised to make the rules (like rules of evidence) fair but I don’t think it is going to work unless these detainees get the full protections afforded in a court marshal.  I guess my argument is simply that no one will see an outcome from these trials as fair and the damage done by these trials is worse than not having them.  This will be an ongoing debate and we will see what happens, but I have heard several military lawyers who are defending the detainees state that there will never be a fair trial in this tainted military system.

Now here is the gist of the original problem:  Most wanted the facility closed, the not so bad guys picked up by mistake (and there were a ton of them in a bounty system for terrorists) repatriated to their home countries to be dealt with there, the bad guys to be tried, convicted, and put in prison with the key thrown away, and no one who is released to return to the battlefield..  Now enter the Republicans with the claim that it is unsafe to put them in our prisons (keep Gitmo open), many will use our system to get out of their sentences and be walking our streets (keep Gitmo open), and the pentagon releasing a study no one can substantiate that one in five of the 525 people released by the Bush administration (a highly dubious number, but…) had returned to terrorist activities (keep Gitmo open).  All of this has a common thread with President Obama’s final proposal that some of these detainees cannot be tried but are dangerous and we must preventatively detain them.  In other words they are all looking to preventative detention and the Republicans want this to be at Gitmo.

In a “war” situation that is in fact what we have with prisoner of war camps.  These people are incarcerated until hostilities have been concluded just so they can’t return to the battlefield.  But what if hostilities are never going to be concluded?  We seemed to have moved these guys to the criminal justice system and there is very little in this system, and for a good reason, to allow for preventative detention. We already have some legal tools that allow for the detention of those who pose danger: quarantine laws as well as court precedents permitting the confinement of sexual predators and the dangerous mentally ill. Every day in America, people are denied bail and locked up because they are found to be a hazard to their communities, though they have yet to be convicted of anything (New York Times).  But we are on a slippery slop here.  Remember the movie Minority Report where the hero could use psychics to prevent crimes by interceding before a crime was committed, then the tables were turned on him?  The question is who decides who is going to commit a crime and what standards are applied to prevent abuse of the incarceration without trail or even a crime committed.

My point here is very simple.  We are all dancing around it, but that is what is being considered.  We need to discuss this and look at the down side because it has a large window in which abuse can slide through.  Are we so afraid for our safety that we are willing to basically gut our system of rights and judicial procedures?  I hope not, but let the debates begin.  But let’s not trick ourselves.  We are really talking about contunuing Bush policies, somewhat spiffed up, just in a different place.  Are we still so afraid to live out our values that we want to go down this road?

For most of us, closing Guantanamo is the first step in redemption.  I know, I know, it is just a place, but it epitomizes all the values we lost on the way to “winning the war on terrorism’, which of course is unwinnable.  You can’t win a war against a tactic.  It has been in use since the beginning of time, but I digress.  President Obama has issued an Executive Order (REVIEW AND DISPOSITION OF INDIVIDUALS DETAINED AT THE GUANTÁNAMO BAY NAVAL BASE AND CLOSURE OF DETENTION FACILITIES) in accordance with his campaign promise and they are coming out of the woodwork saying it can’t be done.  “Be afraid America, these are very bad people.”  “You can’t put them in my state.”  “Maybe they ought to go to Alcatraz” (Representative John Boehner). Boehner also repeated the bogus number of 61 detainees who have returned to the battle field.  More about that in a minute.  It is pure fear tactics all over again.

First and foremost let’s remember we started with 800 detainees and have now cut it down to less that 300.  Most had nothing to do with terrorism and have been horribly treated because we threw out the rule of law.  The stated figure of 61 detainees claimed to have returned to the battlefield, only one has been unquestionably identified as a fighter for al-Qaeda (Wikapedia).  There may be more, but it certainly is not the 61 they are using to scare you. But before you are shocked, shocked, shocked that a few have returned to the battle ask yourself a couple of questions:

• First considering their treatment, wouldn’t you hate the United States?
• Second, ever consider the recidivism level from our own prisons?  If you don’t think we are releasing very dangerous Americans to our own streets you are in la-la land.
• Third consider who most of these guys are in Guantanamo:  Ignorant, not well-educated peasants.  I am quaking in my boots.  You should be much more afraid of those who were recruited from the better-educated Muslim societies because we established Guantanamo and used torture.
• Finally consider why these guys were released if we know they are so dangerous?  Could we not support the charges and why not?

Okay, lets get to the heart of the matter, the really dangerous ones which are probably countable on one or at most, two hands.  The argument goes that we know they are criminals but cannot use the evidence we have because it is badly tainted and they might go free.  Therefore we must come up with a way to preventatively detain these bad guys.  I don’t buy it and neither should you.  First, if the only evidence they have may be disallowed because of the improper way it was obtained (torture), it is highly unreliable anyway.  If they can’t rebuild their cases with real evidence and try them in a real court, these people need to be released, period.

Think about it this way.  If we decide that there is a certain class of people who don’t deserve the rights and protections we hold so dear, who draws that line about who does and does not deserve them.  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights….”  Our basic values say all men, not just the ones who are specially chosen.  If we deny those rights from some subclass of men, we no longer are who we think we are nor are our rights secure.  So when do I do or write something that someone thinks makes me a danger to them (some think that as I currently write) and decides to include me in that subclass that no longer has his basic rights.

I will accept that we do preventatively detain some people deemed mentally incompetent and are deemed a threat to themselves or others.  But the process for doing this is well defined, and we are talking about provable mental impairment, well documented in law.   But when we start incarcerating people because we think they might commit a crime we are starting down the slippery slope of defining subclasses of people who don’t enjoy self-evident truths.  If you believe this is justified then 80% of our own criminals should never be released from our own prisons.

What I see in the scare tactics being used is raw cowardice.  Nobody said being an American and standing up for our ideals was going to be easy.  In order to uphold our principles some dangerous people may get released.  Some innocent Americans may die.  But what the cowards want you to do is throw away what you stand for so you won’t be afraid.  I find it highly ironic that those that support the continuation of Guantanamo and preventative detention are the first to wave the flag and the last to want to suffer the hard consequences of our beliefs.  In other words they are cowards because they lack the courage of their convictions. They are afraid to stand up for the very American Ideals they tout.

Simply put:  Charge them, try them, or release them.  It is who we are.  If they come back as terrorists on the battlefield, they will die as terrorists on the battlefield.  But if we can keep our values in tact, they will have a hard time justifying their hostility toward us and those that paid the ultimate price defending us will have died for something important.