Neither domestic law nor international law, such as it is, adequately
envisioned how to deal with (mostly but not only) men who wage war in--how do we term it?--unconventional and exceedingly gruesome ways.
They are not properly criminals, and I find it more than tragicomic that
the United States is still trying to figure out how to deal with these
miscreants while abiding by habeas corpus and other delicate
provisions of the constitution. It is not as if these men were
picked up on the streets of Dallas after shooting up a bank in order to
buy chemical fertilizer for making a bomb. That would be easy for
the cops, the agencies of justice and the defense. But their deeds,
some of them conceivably minor in historical terms, are not the stuff
with which district attorneys or U.S. attorneys properly deal.
And these 250-odd left in Guantanamo are certainly not military personnel
in the legal sense either, wearing uniforms, having rank, grasping what
rights they possess and do not possess as a captive according to the
accepted and, indeed, enshrined rules of war.
If common sense were to govern here, frankly any rude justice would
do.
But common sense does not govern here, and it certainly didn't govern
under the Bush administration. It, too, tried to square the
circle. It happened on the procedural fix of military tribunals
which candidate Obama promised to end. He was for sure not
insincere when he made the pledge. Yet this was, the elected
president found out, something he could not do. "No, we
can't." Surely, it is better than that he pretend. There will
be other easy answers that will turn out to be rather more complicated
than he and his advisers assumed. So Obama will do as best he
can. Government, like life, is always a compromise. (Oh, is
that an original thought!)
During the presidential race, Obama treated Guantanamo not as totem but
as taboo. It was to be done away with. That is still the
president's position, as he reminded us in a much-publicized speech on
Thursday. But the Senate had, with virtually unanimous Democratic
support, already rejected his request for an $80 million appropriation to
close down the detention center. (Yes, it costs a fortune to close
down a penal institution.) There are, it is true, no settled plans
as to where the remaining prisoners will be detained. In
America? With various allies? Send them home to detention
centers in Yemen or whatever Muslim country wants them, which most
don't. Even let them free. I heard on N.P.R. today some
American lawyer for one of the detainees say he would welcome his client
and other prisoners of whom he knows living in his own
neighborhood. But what about his neighbors?
They do not want any of the incarcerated brought to the country.
And neither do their elected representatives, Republicans or
Democrats. Except that the Democrats made a campaign fetish
of emptying Guantanamo--as you can see without thinking for a
moment as to what would replace it.
France and England have, breathing hard, said they would each take
one. But these countries have plenty of their own local terrorists,
thank you, and thanks also to the European fashion of
multiculturalism. They don't need the detritus from the American
naval base in Cuba.
Being sent to a prison in an Arab country means that they'd first be
tortured (just for fun) and then they would somehow escape, many of them
returning to their old terrorist work. After all, Guantanamo likely
did not offer them alternative employment skills. Elizabeth
Bumiller has a story in Thursday's Times about a Pentagon document
reporting that one out of seven of the 534 prisoners already released
have gone back to their former trade. That's a lot of
recidivism.
Now, I think that the Guantanamo fetish is actually just a fetish. And I don't believe that putting these degenerates in U.S. maximum
security prisons, those already existing or those to be newly built,
would imperil American lives. But I don't make these
decisions. They are made by the vox populi or its designated
surrogates. Maybe a new facility could be built on Guam or Wake
Island, both American territory, so that some constitutional guarantees
would still be theirs, as they wouldn't, say, in Saudi Arabia. There's one other plus here: the mischievous A.C.L.U. lawyers would have
to undergo punishing trips to get to their clients. Still, as I
recall from the war movies, these vestiges of American colonialism--now,
there's another cause!--have wonderful all-year weather, certainly too
good for these bastards.