The Enduring Problem of GITMO

 

imageWriting in the Washington Examiner, Byron York suggests that the prosecution of Sgt. Bowe Bergdahl is likely to rekindle debate over the US detention facility at Guantanamo Bay Naval Base. President Obama is apparently embarrassed that he has not been able to close the prison as promised six years ago and — given his penchant for taking questionable executive action over congressional objections — it’s reasonable to expect him to do something about it in the next few years. There’s no way that ends well.

But while it’d be best for Obama not to get his way on this matter, GITMO’s use as a detention facility — and the political maneuvering around it — should not continue past the next presidents’ term. The prison’s location was clearly chosen less for its geographic advantages — members are welcome to correct me if I’ve missed something, but Naval Support Facility Diego Garcia has long struck me as a superior location in almost every regard that way — than for its unique political situation, being situated on the only spot on earth from which the United States military cannot be evicted that is also not subject to US civilian law. It’s humiliating for the United States military to feel it has to hide its prisoners from civilian courts (though I leave it to readers to decide on their own whether this speaks worse about our military or our courts). Comparisons to a gulag are offensive on many levels, but that’s hardly an endorsement of the situation.

Adding to the circus has been our nation’s inability to prosecute the prisoners, even under the relatively easy standards of evidence and proof afforded by the military tribunals set-up nearly a decade ago. Indeed, Khalid Sheikh Mohammed’s military trial is yet to even start. Unless something changes the situation — which, again, I doubt will be a good thing under President Obama — it’s likely that his detention will span at least three presidencies without resolution.

That’s more than long enough. There is no good reason to hold these prisoners indefinitely: whatever intelligence value they had has long since expired, and most people — self included — argue that it would be wrong to exchange them for American hostages, be they deserters like Sgt. Bergdahl or modern-day Sgt. Yorks. If the remaining prisoners truly are “the worst of the worst” then figuring out how to safely detain, morally interrogate, legally try, and humanely execute those found guilty should be well within our ability, certainly after all this time.

The Republican candidates for president should get in front of the issue so that we can better put it behind us and — hopefully — stop the president from making the matter any worse than it already is. Among their policy proposals, each should present a plan for dealing with the remaining detainees swiftly and figuring out how to deal with any future ones in a way that doesn’t cause a decade-long political fracas both at home and abroad.

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  1. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    They are enemies of America, and if we return them to the field, they will again take up arms against us. Further, every single one, every one, was in violation of the Geneva Conventions. They were not fighting as an actual military force. By rights, we can have them all executed without a trial.

    I am just as happy to keep them in a hole forever. They deserve much worse than what they are getting.

    We are not the bad guy in this war. They are as evil as any Nazi’s every were.

    • #1
  2. user_989419 Inactive
    user_989419
    @ProbableCause

    Tom, my main question re: the GITMO situation is: what’s the problem?  As near as I can tell, you find it problematic because: 1.) it’s been unresolved for a long time, and 2.) “It’s humiliating for the United States military to feel it has to hide its prisoners from civilian courts,” and 3.) political fracas.

    This will sound cavalier, but my honest reaction is: 1.) don’t care, 2.) disagree, 3.) it’s burned itself out by now.

    However, here is a related observation: not only do we refrain from executing these “worst of the worsts,” but we don’t even execute our own traitors anymore.  (E.g., why is Major Nidal Hasan still drawing breath?)

    • #2
  3. EJHill Podcaster
    EJHill
    @EJHill

    There is very little precedent here. The problem is that these prisoners are not in the service of any established national military and therefore not subject to The Geneva Convention.

    In WWII the Germans dropped eight spies off the coast of New York. They were captured in civilian clothes and were eventually tried by the Army. One, Herbert Haupt, was a US citizen. He and five others were executed by electric chair. (His parents were deported later.)

    • #3
  4. Steve C. Member
    Steve C.
    @user_531302

    This is what you get when the rule of law morphs into the rule of lawyers.

    Probably my greatest disappointment with the Bush Administration is the inability to categorize, i.e. determine their status under international law;  and prosecute the detainees. Yes, I will acknowledge the Supreme Court threw a wrench into this process, still Congress did go back and amend the law

    I believe the government fears the outcome(s) will not survive civilian appellate review and undermine their authority. Ironic in that the purpose of these international treaties is to define the consequences of not adhering to the laws of war.

    • #4
  5. Instugator Thatcher
    Instugator
    @Instugator

    Diego operates under British law. It is unsuitable for that reason.

    • #5
  6. Ricochet Inactive
    Ricochet
    @TheChuckSteak

    Terrorists don’t have a right to a civilian court where they can plead the 5th. They need to be interrogated for information that will aid in our fight against them and then they should be shot.

    • #6
  7. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Bryan G. Stephens:They are enemies of America, and if we return them to the field, they will again take up arms against us.

    No disagreement.

    Bryan G. Stephens:Further, every single one, every one, was in violation of the Geneva Conventions. They were not fighting as an actual military force. By rights, we can have them all executed without a trial.

    Likely true, though one might argue that it’s still in our interest to try them (I could be persuaded either way), then execute them if found guilt (which they mostly likely would be).

    Bryan G. Stephens:I am just as happy to keep them in a hole forever. They deserve much worse than what they are getting.

    To the extent we disagree here, it sounds like I’m more in favor of executing them than you.

    Bryan G. Stephens:We are not the bad guy in this war. They are as evil as any Nazi’s every were.

    Again, no disagreement.

    • #7
  8. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Tom Meyer, Ed.:

    Bryan G. Stephens:They are enemies of America, and if we return them to the field, they will again take up arms against us.

    No disagreement.

    Bryan G. Stephens:Further, every single one, every one, was in violation of the Geneva Conventions. They were not fighting as an actual military force. By rights, we can have them all executed without a trial.

    Likely true, though one might argue that it’s still in our interest to try them (I could be persuaded either way), then execute them if found guilt (which they mostly likely would be).

    Bryan G. Stephens:I am just as happy to keep them in a hole forever. They deserve much worse than what they are getting.

    To the extent we disagree here, it sounds like I’m more in favor of executing them than you.

    Bryan G. Stephens:We are not the bad guy in this war. They are as evil as any Nazi’s every were.

    Again, no disagreement.

    I also don’t think that keeping them in a hole is going to be a long term issue. I agree with EJ that it has burnt itself out.

    • #8
  9. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Instugator:Diego operates under British law. It is unsuitable for that reason.

    I presented Diego as a geographically superior location, as the geography is commonly cited as a prime reason for GITMO’s selection. That said, I don’t see why it’s status as a British territory should be prohibitive, unless you trust one of our best allies as little as our judicial system.

    Again, why do we need to shield our unlawful combatants from our own civilian courts? If they’re status as having no rights under Geneva is so clear — and I’d wager it is — then this shouldn’t be a problem.

    • #9
  10. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Probable Cause:This will sound cavalier, but my honest reaction is: 1.) don’t care, 2.) disagree, 3.) it’s burned itself out by now.

    So you’re

    1. Fine with them continuing to suck air; I’m not.
    2. I’m really amazed by this is separation of powers run horribly amuck. Branches of our federal government should not have to operate overseas in order to escape the jurisdiction of others. That’s just pathetic.
    3. Well, likely not, as Obama’s probably going to try to do something about it within the next two years (again, likely something we all agree to be bad). I’d rather the GOP get out ahead of this, both to stop Obama and to get this behind us.
    • #10
  11. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Steve C.:Probably my greatest disappointment with the Bush Administration is the inability to categorize, i.e. determine their status under international law; and prosecute the detainees. Yes, I will acknowledge the Supreme Court threw a wrench into this process, still Congress did go back and amend the law.

    Well said. I understand the initial confusion, but the Bush Administration should have figured out how to push the matter along well before leaving office.

    Steve C.:I believe the government fears the outcome(s) will not survive civilian appellate review and undermine their authority.

    Again, that strikes as pathetic on both levels.

    • #11
  12. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    EJHill:In WWII the Germans dropped eight spies off the coast of New York. They were captured in civilian clothes and were eventually tried by the Army. One, Herbert Haupt, was a US citizen. He and five others were executed by electric chair. (His parents were deported later.)

    Yes, though that was hardly a process to be terribly proud of (the Germans should have been shot immediately after interrogation, but Haupt should have been tried for treason or sabotage).

    As I recall, part of the reason the process was such a mess under president Bush is that they looked to that case as precedent, rather than as a hurried mess.

    • #12
  13. user_519396 Member
    user_519396
    @

    As mentioned above, Diego Garcia is part of the British Indian Ocean Territory, and as such is subject to jurisdiction of British (and possibly European) courts. That makes it a non-starter. The US Navy has a long-term lease to facilities on DG. Guantanamo is held on a perpetual lease, with an annual payment to the Cuban government. Castro has chosen not to accept the payments.

    • #13
  14. Instugator Thatcher
    Instugator
    @Instugator

    British courts are worse than ours. They would release them for time served. Note also the only Death Penalty in Great Britain was known as the Liverpool pathway for the dying patient (under which they executed more people than the US since 1600 -by several orders of magnitude) and which they claim to have ended in 2012.

    Geographically, DG is in the same hemisphere as as most AQ forces and is only 3 hours flying time from Yemen. ISIS has little trouble projecting power in that region.

    • #14
  15. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Instugator:British courts are worse than ours. They would release them for time served. Note also the only Death Penalty in Great Britain was known as the Liverpool pathway for the dying patient (under which they executed more people than the US since 1600 -by several orders of magnitude) and which they claim to have ended in 2012.

    I’ll concede the point, then. Bad example.

    Regardless, the US has plenty of easily-securable territory well under its own control. There’s no good reason to have to rely on a convenient accident of history to hide from ourselves.

    Instugator:Geographically, DG is in the same hemisphere as as most AQ forces and is only 3 hours flying time from Yemen. ISIS has little trouble projecting power in that region.

    Putting aside IS’s lack of existence in 2001, I’m sufficiently confident in the US Navy to be able to protect a naval airbase on a coral atoll in the middle of the Indian Ocean from terrorist organizations.

    • #15
  16. J Flei Inactive
    J Flei
    @Solon

    Bryan G. Stephens:They are enemies of America, and if we return them to the field, they will again take up arms against us. Further, every single one, every one, was in violation of the Geneva Conventions. They were not fighting as an actual military force. By rights, we can have them all executed without a trial.

    I am just as happy to keep them in a hole forever. They deserve much worse than what they are getting.

    We are not the bad guy in this war. They are as evil as any Nazi’s every were.

    Like Tom, I agree with pretty much everything you’ve said, only I’m really not comfortable letting these guys live.

    So, what if a Republican candidate said we should just friggin execute some of these guys (using those exact words, of course)?  How would that go over, I wonder?  That’s kind of what I’d like to hear.

    • #16
  17. EJHill Podcaster
    EJHill
    @EJHill

    No two administrations could be more diametrically opposed than Bush II and Obama’s. That neither of them have proceeded with trial should show you something.

    What and whose laws have been broken? The jurisdiction that the crimes were committed in? The international laws of warfare as defined in the 1949 Geneva Conventions that these extra-legal terrorist organizations do not belong?

    Do US civilian courts really want to tackle crimes committed in Afghanistan? Do we want our soldiers and Marines subject to the local whims of the country or countries that they’re fighting in?

    Quite frankly, after interrogation the CIA should have just shot the bastards.

    • #17
  18. user_331141 Inactive
    user_331141
    @JamieLockett

    I find it interesting that so many people who believe that America is the epitome of moral governance and leadership in the world balk at the prospect of us actually demonstrating it.

    • #18
  19. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    EJHill:No two administrations could be more diametrically opposed than Bush II and Obama’s. That neither of them have proceeded with trial should show you something.

    Yes: that both have been incompetent on this matter.

    • #19
  20. Ricochet Inactive
    Ricochet
    @TheChuckSteak

    Jamie Lockett:I find it interesting that so many people who believe that America is the epitome of moral governance and leadership in the world balk at the prospect of us actually demonstrating it.

    I don’t think giving terrorists the same rights as Americans or legal combatants is moral.

    • #20
  21. user_519396 Member
    user_519396
    @

    Part of the mess stems from the class of “combatants” represented in Gitmo is an anomaly. We are treating terrorists not as criminal defendants, and not as prisoners-of-war, but as something else. That “something else” has never been defined in a way the courts find convincing, despite Congress acting several times. I agree the WW2 saboteur precedents are inadequate and inapt. It seems to me the Gitmo gang have been afforded much more due process than anything a POW would receive. POWs taken on the battlefields of WW2 didn’t have access to the military courts to challenge their detentions, “your honor, I was wearing that German uniform only because I was cold…”

    The Obama position is to grease ’em (and bystanders) with drone strikes, which avoids thorny problems like (a) how and where to interrogate them and (b) what to do with them after interrogation. The Bushies were adapting on the fly to a rapidly evolving situation. Obama doesn’t have that excuse, after being “at this” for nearly fourteen years. Obama has done nothing to solve the problem other than posture about closing the facility. He’s offered no defensible plan or coherent strategy–I see a pattern here.

    • #21
  22. user_331141 Inactive
    user_331141
    @JamieLockett

    TheChuckSteak:

    Jamie Lockett:I find it interesting that so many people who believe that America is the epitome of moral governance and leadership in the world balk at the prospect of us actually demonstrating it.

    I don’t think giving terrorists the same rights as Americans or legal combatants is moral.

    Who is asking us to?

    • #22
  23. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    EJHill:What and whose laws have been broken? The jurisdiction that the crimes were committed in? The international laws of warfare as defined in the 1949 Geneva Conventions that these extra-legal terrorist organizations do not belong?

    I have no argued that laws have been broken, though the choice of GITMO implies that the administration was worried that courts would argue so. Regardless of where the truth lies on the matter, this is something that we’ve had more than 10 years to resolve better than we have.

    EJHill:Do US civilian courts really want to tackle crimes committed in Afghanistan? Do we want our soldiers and Marines subject to the local whims of the country or countries that they’re fighting in?

    I’d like them to be subject to our law, and I think US law should be able to find a way to detain, process, try and execute these unlawful combatants in such a way that we don’t have to hide them from ourselves. If the laws are bad, they can be changed.

    • #23
  24. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Jamie Lockett:

    TheChuckSteak:

    Jamie Lockett:I find it interesting that so many people who believe that America is the epitome of moral governance and leadership in the world balk at the prospect of us actually demonstrating it.

    I don’t think giving terrorists the same rights as Americans or legal combatants is moral.

    Who is asking us to?

    Certainly not me.

    • #24
  25. user_331141 Inactive
    user_331141
    @JamieLockett

    TheChuckSteak:

    Jamie Lockett:I find it interesting that so many people who believe that America is the epitome of moral governance and leadership in the world balk at the prospect of us actually demonstrating it.

    I don’t think giving terrorists the same rights as Americans or legal combatants is moral.

    Also, doesn’t this stance make us no better than they are? Wouldn’t giving them a trial or tribunal and then executing them legally demonstrate that we are in fact the moral leaders in this conflict? Doesn’t detaining people in perpetuity during this “forever war” undercut our moral position?

    • #25
  26. J Flei Inactive
    J Flei
    @Solon

    Jamie Lockett:I find it interesting that so many people who believe that America is the epitome of moral governance and leadership in the world balk at the prospect of us actually demonstrating it.

    Do you mean demonstrate our moral leadership by executing terrorists who are at war with us?  Or do you consider the entire prison, along with the waterboarding, immoral?

    • #26
  27. user_331141 Inactive
    user_331141
    @JamieLockett

    J Flei:

    Jamie Lockett:I find it interesting that so many people who believe that America is the epitome of moral governance and leadership in the world balk at the prospect of us actually demonstrating it.

    Do you mean demonstrate our moral leadership by executing terrorists who are at war with us? Or do you consider the entire prison, along with the waterboarding, immoral?

    I consider perpetual detention immoral. Either execute them for their war crimes or set them free due to lack of evidence for those crimes. A military tribunal would be sufficient to determine their guilt.

    What is the purpose of their perpetual detention? What is gained by their imprisonment versus execution?

    • #27
  28. user_331141 Inactive
    user_331141
    @JamieLockett

    J Flei:

    Jamie Lockett:I find it interesting that so many people who believe that America is the epitome of moral governance and leadership in the world balk at the prospect of us actually demonstrating it.

    Do you mean demonstrate our moral leadership by executing terrorists who are at war with us? Or do you consider the entire prison, along with the waterboarding, immoral?

    If America is truly on the moral high ground in this conflict (we are) and if these men at Gitmo are truly so heinous and guilty (they are) – what is lost by trying them for their crimes?

    • #28
  29. Ricochet Member
    Ricochet
    @ArizonaPatriot

    I think that we should put the blame for Gitmo on the judicial branch, not the executive.  In prior wars, the judiciary had sufficient restraint to understand that it had little or no authority over the treatment of prisoners of war.  Is there anyone who thinks this remains true today?  If so, read Hamdan and Boumediene.  Then imagine how much worse the situation would be if these unlawful enemy combatants were located inside an actual judicial district of the US.

    Put simply, the judiciary is very poorly situated to second-guess the decisions of military personnel on military matters.  The “law enforcement model” does not work in wartime.  Police work is centered on apprehending suspects and collecting evidence.  Soldiering is centered on killing or capturing enemies, and taking time to collect the sort of evidence that would be needed for a standard criminal conviction is impractical.  You don’t call in the CSI team in the aftermath of the Battle of the Bulge.

    The real problem, as I see it, is Leftist-minded judges who are fundamentally uncomfortable with the laws of war, especially as applied to unlawful combatants.  This is not altogether a bad thing, as judicial discomfort with executive action involving killing or indefinite imprisonment is in principle a good thing.  But this makes it even more important for judges to understand the limitations of their authority.

    Under ordinary peacetime conditions, of course, executive action is sharply constrained by involvement and oversight by the judiciary.  The executive cannot kill people, or imprison them for long periods, without obtaining a conviction in court.

    Invocation of the war power necessarily changes these rules.  One of the main purposes of executive action in wartime is to kill or capture the enemy.  The Geneva and Hague conventions give protection for lawful combatants who are taken prisoner.  Generally similar rules applied, at least in wars between Western powers, by custom long before these conventions.  These protections do not apply to unlawful combatants, and should not apply to them, because to hold otherwise is to undermine the very incentive that seeks to make war more civilized.

    Bill Whittle wrote an excellent piece almost 10 years ago about how offensive and uncivilized are the actions of these unlawful combatants, because they violate what he called the covenant of Sanctuary:

    And why do soldiers wear uniforms?  It certainly is not to protect the soldier. As a matter of fact, a soldier’s uniform is actually a big flashing neon arrow pointing to some kid that says to the enemy, SHOOT ME!  And that’s one of the things a uniform is for. It makes the soldier into a target to be killed. Now if that’s all there was to it, you might say that the whole uniform thing is not such a groovy idea. BUT! What a uniform also does — the corollary to the whole idea of a uniformed person is to say that if the individual wearing a uniform is a legitimate target, then the person standing next to him in civilian clothes is notBy wearing uniforms, soldiers differentiate themselves to the enemy. They assume additional risk in order to protect the civilian population. In other words, by identifying themselves as targets with their uniforms, the fighters provide a Sanctuary to the unarmed civilian population.  And this Sanctuary is as old as human history. The first civilized people on Earth, these very same Iraqis, who had cities and agriculture and arts and letters when my ancestors were living in caves, wore uniforms as soldiers of Babylon. This is an ancient covenant, and willfully breaking it is unspeakably dishonorable.

    The traditional rule for those who broke the covenant of Sanctuary — pirates, spies, outlaws — was simple.  Summary execution.  No trial, no lawyer, no judge, no jury, no appeal.  Any treatment that these Gitmo prisoners get better than summary execution is a matter of pure discretion, either based on undeserved mercy or — more practically — on a desire to extract useful information from them.

    The laws of war are brutal.  Even an honorable enemy soldier acting entirely as he should — bearing arms openly, wearing a uniform, following a legitimate chain of command — can be shot in the back on patrol, blown up at the breakfast table, or have his throat slit as he sleeps in bed.  The idea that an unlawful combatant should get better treatment is a betrayal of honorable warriors on both sides of the conflict.

    But good luck getting a Leftist judge to understand this.  Thus, we’re left with Gitmo.  Don’t blame President Bush, and don’t blame the military.

    For that matter, don’t blame the lawyers.  There are lawyers — like me — who make precisely these arguments.  It’s the job of the lawyers to vigorously advocate for their side, in the expectation that this will give the actual decision-maker the best information and argument available.

    • #29
  30. Ricochet Inactive
    Ricochet
    @TheChuckSteak

    Jamie Lockett:

    TheChuckSteak:

    Jamie Lockett:I find it interesting that so many people who believe that America is the epitome of moral governance and leadership in the world balk at the prospect of us actually demonstrating it.

    I don’t think giving terrorists the same rights as Americans or legal combatants is moral.

    Also, doesn’t this stance make us no better than they are? Wouldn’t giving them a trial or tribunal and then executing them legally demonstrate that we are in fact the moral leaders in this conflict? Doesn’t detaining people in perpetuity during this “forever war” undercut our moral position?

    The war is forever not because of us but because of them. As long as they hold the views they do and these organizations are operating with the intent to do harm to Americans, we have every right to detain them as long as we want. George Washington detained British soldiers and even beheaded some of them when he couldn’t hold them any longer and had to move on. America hasn’t the problem of having to kill them because we can’t keep them as Washington did, so we just keep them. Though I would have no problem just executing them. We could set up a kangaroo court like the Nuremberg Trials to make ourselves feel good. The Nazi leadership were heads of a government so maybe it made sense to force this show. But if anyone just executed them without the trials would anyone care? A tribunal where we know the outcome and demand the outcome to be one way is just a bunch of show. There is precedent for this stuff. I don’t see how executing someone is better than holding someone where they play soccer and get fatter in Guantanamo. Either way I couldn’t care less what they do with them as long as they keep them out of our courts.

    • #30
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