Turning our war on terror into an insulting and deadly game of catch-and-release.
By David B. Rivkin, Jr. & Lee A. Casey
The Washington Post asks, "How should the U.S. handle inmates upon the closure of detention facilities at Guantanamo Bay?"
There is no good answer to this question. All of the options are bad. And this, above, all, vindicates the Bush Administration's original decision - following the practice of the Clinton and many previous Administrations in handling Haitian and Cuban migrants and refugees - to house captured enemy combatants at Guantanamo Bay. It was, in fact, almost the perfect place to hold al-Qaeda and Taliban captives. It is a secure facility, located far from the active battlefields, away from civilian populations likely to be al-Qaeda targets, and does not present "host country" diplomatic issues. The decision to close the base was a triumph of ideology and propaganda over good sense and, in the long run, it is almost certain to damage the war effort.
That said, the alternatives to Guantanamo are as follows:
First, the detainees can be moved to regular prison facilities, most likely the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas, or the U.S. Naval Consolidated Brig in Charleston, South Carolina, although other federal maximum security facilities might also be considered. The drawbacks to this solution are obvious. It will mean the relocation of dozens of dangerous and determined terrorists (by now, the Obama Administration will have discovered that they are emphatically not all innocent shepherds sold to the United States by Afghan and Pakistani bounty hunters) in or near major U.S. population centers - creating an incentive for al-Qaeda to direct its attention and operations towards those areas. As a result, of course, the Administration will find very significant political difficulties in following this strategy, since no responsible member of Congress will want these individuals in their state or district.
In addition, there is an interesting legal question that arises when and if the Guantanamo detainees are moved to prisons in the United States. Although some of the Guantanamo facilities are designed as modern, maximum security holding centers, none of the camps are actually prisons in the sense that Leavenworth, the Charleston Brig, or Bureau of Prisons installations are. The detainees at Guantanamo are not convicted criminals, but are held as enemy combatants. Because they are "unlawful" or "unprivileged" combatants, they are not entitled to the rights and privileges of honorable prisoners of war under either the Geneva Conventions or customary international law.
They do, however, have certain minimal rights - to humane treatment, for example - under the laws and customs of war and it is by no means clear that they can lawfully be treated as if they were convicted criminals, at least until after they have been so convicted by a properly convened military tribunal. Today, for example, the Guantanamo detainees are held in a variety of facilities, some more, some less secure, given special meals, medical care, religious consideration and other privileges that manifestly do not obtain in normal prisons. Indeed, at a minimum, the detainees cannot simply be introduced into the general U.S. prison population. And, arguably, they cannot be held at "penal" facilities at all. Such treatment would, of course, be clearly impermissible were they POWs, it may or may not be permissible for captured unlawful combatants.
Moreover, to the extent that Geneva Common Article 3 applies to their treatment (as determined by the Supreme Court in Hamdan v. Rumsfeld (2006)), housing the detainees in penal institutions could well be considered to be forbidden "outrages upon personal dignity, in particular humiliating and degrading treatment." That provision is notoriously vague. Clearly, Common Article 3 does not require that the detainees be treated in a manner equivalent to POWs, and must be interpreted in the context of armed conflict rather than ordinary civilian life. Thus, Common Article 3 should not be interpreted to forbid certain practices common in civilian prisons, such as segregation or even force feeding. However, housing detainees in actual penal institutions, and treating them overall as criminal convicts (before trial and conviction), might violate the requirements - at least arguably.
These issues will have to be considered and resolved before the detainees can be introduced into the U.S. prison system.
Second, the Guantanamo detainees can be returned to their home countries, or to other foreign states willing to take them. This option also poses problems that, for some of the detainees, are insurmountable. Many of the countries of origin, which may be prepared to take back their citizens, cannot necessarily be trusted to (1) treat them humanely; or (2) to keep them from returning to duty as al-Qaeda or Taliban operatives. In the first case, the U.S. cannot transfer them for humanitarian reasons (the case, for example, of the Chinese Uighers) and in the second sending them home is tantamount to simple release. They will then be free to continue their jihad against America and its allies.
The risks here are obvious also, and already have been proven in cases where the Bush Administration returned detainees to their home countries. Some of these, at least a dozen and perhaps more, have been recaptured or re-identified as active jihadists. Not only is this not way to win a war, but it violates the trust and confidence of our own military forces - who are forced to once again risk their lives against individuals whom they had already captured. In other words, such a policy turns war into a deadly game of catch and release.
Sending detainees to friendly powers, such as our European allies, may create the same issue. It is, of course, not entirely clear on what legal basis European governments, many of whom reject the laws of war paradigm in the war on terror, would hold these individuals. Legal action on the detainees behalf is certain to follow any transfer, and they may well end up being freed just as surely as if they were returned to a state sympathetic to al-Qaeda.
Finally, processing the detainees through our own, civilian courts is unrealistic. None of these individuals, captured in war, were investigated or arrested in accordance with the various constitutional and statutory rules governing the treatment of criminal defendants. They have not, for instance, been "mirandized" and any effort to prosecute them may well falter on such procedural issues.
In addition, however, it is unlikely that the government will be able to produce, in all but a few cases if any, the quantum and quality of evidence necessary for a conviction in a civilian court. The armed forces are neither trained in the collection and preservation of evidence, nor do they ordinarily have the opportunity at or near the locations of capture do engage in such activities. Obviously, the Pakistan/Afghan borderlands are not a crime scene, cordoned off with yellow tape until the evidentiary units arrive.
Take an example of simple identification. How would a detainee, if prosecuted as a criminal defendant in federal court, be identified as the individual actually captured by U.S. forces, or who was transferred to U.S. custody by allied groups? What, for example, if the soldiers who captured the "defendant" (made the "arrest," so to speak) have since been killed in action? What if they cannot be identified, or brought to court in a timely manner? What if they cannot identify the detainee because, for example, they never actually looked at his face - having at the time been more concerned with his hands, where the gun was? Certainly, any competent defense counsel would raise such issues on his or her clients behalf. And this is the simplest of evidentiary issues.
In truth, the best solution to how to deal with the detainees now at Guantanamo Bay is for the Obama Administration to rethink its improvident decision to close the facilities in the first place.
The authors served in the Justice Department under Presidents Reagan and George H.W. Bush.
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