Thursday, May 21, 2009
President Obama has announced a framework for dealing with the prisoners at Guantanamo Bay, Cuba. The "Gitmo" detainees are hardened terrorists either caught on the battlefields of Iraq and Afghanistan or they are captured via raids and other interventions world wide. What to do with these detainees/prisoners/terrorists? To be sure these terrorists deserve a trial, sadly most will never get one and it is their own faults. Not ours. But is it our responsibility to provide one anyway? Unfortunately there is no plain answer. The answer is "yes" and "no."
Here is Obama's framework.
--When feasible, try those who have violated American criminal laws in federal courts.
--When necessary, try those who violate the rules of war through Military Commissions.
--When possible, transfer to third countries those detainees who can be safely transferred.
What jumps out at me is that this is the exact same framework the Bush Administration has used except of course the easier access to US courts of law. Which is a bit misleading because the detainees have been tried in US courts under the Bush Administration. It was just not the preferred venue. Basically all that is changed is the vehemence with which a "trial" is sought. Under the Bush Administration the detainees were treated as international terrorists. Under Obama they are treated as US criminals.
Terrorists can be both criminals and soldiers. You could try to parse each individual terrorist as criminal or soldier but even that is problematic. It seems simple. But if you have a person who has committed acts of terrorism in Yemen, Pakistan and found fighting the US in Iraq is he a soldier or a criminal. Or neither. The Bush Administration said "neither," he is an Enemy Combatant. Which means we will put him on trial in a court that is our best effort to match what the terrorist is... to what we have available to try him with. To me that makes perfect sense rather than driving a "square-peg" terrorist into a "round-hole" court system. Which is the Obama alternative. Our courts can't deal with the sensitive nature of the evidence itself, its collection or the sensitive nature of those that collected the evidence. Obama knows this and that is why his Gitmo Plan is just smoke and mirrors with a few bones thrown to his constituency so he appears as having actually done something.
Lets look at the plan and problems with each. After doing so you will understand why Guantanamo was so successful, useful and necessary. When "feasible" Obama wants to try terrorists in the US Federal system. On its face that sounds good. But it will never, or almost never, be "feasible" for the security and sensitive information reasons I have already laid out. When "necessary" try terrorists in Military Commissions. Well my friends that is exactly what we have been doing. Again, smoke and mirrors to look like big change, but actually effectively no different than Bush. Finally "when possible, transfer to third countries those detainees who can be SAFELY transferred." That means transfers can only happen when the terrorist comes from a modern Western country, which they rarely do. If you are a terrorist from the UK we can ship you to their prisons to rot and cost their tax payer money. But if you are from Yemen or Saudi Arabia you will be broken out of jail in about a year if we ship you there, and back on the battle field. Or, you will actually be tortured for information. Not water boarded or have dogs bark at you while wearing women's panties on your head. NO, I mean real torture.
So what does this mean. It means that 90% of the folks in Gitmo deserve to be there and they will get trials when we get around to it. The other 10% are to be used by the Obama administration as a distraction and smoke-and-mirrors campaign to hopefully woo his supporters into thinking he is making good on campaign promises. In the mean time, Gitmo is still open. It will be open for some time and those inside will get the justice they and we deserve on our timetable not theirs.