Obama Must Either Try or Release Guantanamo Detainees

Foreword by Stan Lerner: Ben is a brilliant, rising star in the downtownster universe, whom in the case of Guantanamo detainees I disagree with vehemently—always the test of an editor. But it is the mission of downtownster to bring its’ readers the best of free speech—and as usual Ben makes a compelling case.

By his own admission, one of the toughest issues President Obama will decide as commander and chief will be how to handle the closing of Guantanamo Bay and what to do with the 245 detainees it contains. The facility, which is located on the 45 square-mile area of U.S. leased land in Cuba, was created by the Bush Administration in 2002 to imprison “enemy combatants” captured during the War on Terrorism. Beginning in 2004, the legal status and privileges of inmates housed in Guantanamo has been in flux, and it continues to be the subject of debate in U.S. courtrooms, legal journals, and cocktail parties to this day. Moreover, the practices of the interrogation officers have drawn not just legal challenge but also widespread condemnation from the media, politicians, scholars, and large swaths of the public. Even in closing, which Obama has ordered to happen on January 22, 2010, Guantanamo Bay is fraught with controversy.

Those of us outside Bush’s inner political circle can only guess at the reasons an isolated naval base on the Cuban island was selected as the best place to erect a detainment camp. We can assume, however, that the privacy it afforded was duly considered and placed at a high value. Intended to be an off-the-radar interrogation facility, a Bermuda Triangle for terrorists, it is highly ironic that the Guantanamo Bay Detention Camp is now one of the most famous prisons in the world.

It is likely true that the legal miasma created at Guantanamo was inevitable and would encumber any administration that decided to confront it. Obama has made headway towards the resolution of some problems. However, by ordering the Guantanamo prison closed, it appears that other problems are magnified and rendered unavoidable. How will Obama handle the detainees? This is a question he can not answer incorrectly. If detainees are released and go on to commit terrorist attacks against U.S. allies or the homeland, Obama’s credibility as a military leader will be irreparable. But what makes the issue trickier still is that not all detainees are alike. In fact, they have been divided into five discreet categories and each category will be given different legal treatment. You can see already that the mere act of ordering Guantanamo closed did not diminish the troubles it houses.

In a speech made in the National Archives Museum, May 21, 2009, Barack Obama discussed at length the dilemma of the Guantanamo detainees. I will let him in his own words explain what his intentions are for each category:

“First, when feasible, we will try those who have violated American criminal laws in federal courts – courts provided for by the United States Constitution.”

“The second category of cases involves detainees who violate the laws of war and are best tried through Military Commissions.”

“The third category of detainees includes those who we have been ordered released by the courts…The United States is a nation of laws, and we must abide by these rulings.”

“The fourth category of cases involves detainees who we have determined can be transferred safely to another country…for detention and rehabilitation.”

“Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people…These are people who, in effect, remain at war with the United States. As I said, I am not going to release individuals who endanger the American people.”

To summarize: one group of detainees can be released, one group can be prosecuted in U.S. criminal court, one group can be prosecuted in U.S. military court, another group can be sent overseas, and a final group cannot be prosecuted or released.

Two of these groups should get the public thinking above second gear. First, there is the determination made that federal courts are suitable for handling the cases of some detainees, while military courts are more suitable for others. Obama explains that the military courts “allow for the protection of sensitive sources and methods of intelligence-gathering; for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot be effectively presented in federal Courts.” With benefits such as those, one has to wonder why he is prepared to bother at all with federal court. But with regard to the “protection of sensitive sources,” it simply is not the case that the criminal courts are unable to ensure the confidentiality of sensitive documents or testimony. Obama himself seemed fully briefed on this fact when using the “state secrets privilege” in the Ninth Circuit U.S. Court of Appeals in February. There is, of course, the risk that the judges may disagree with the administration on what constitutes a “state secret” (as was done in April), but that is the price paid for an independent judicial system. In Obama’s words, values such as this one “have been our best national security asset – in war and peace; in times of ease and in eras of upheaval.” Does it not grate at our judicial faculties and love for equality when we are told different courts are better suited for different people? Evidently, the contagion of a warring spirit makes possible and easy these discriminations.

Unfortunately, the vanishing ethic of judicial equality is more severe in the case of the unhappy detainees in category five. You will remember that these are the ones who are too dangerous to release but also who have “tainted” evidence in the case against them. Because they cannot be tried, and they also cannot be freed, category five detainees will remain in prison indefinitely. Obama confirmed this in his May 21 speech and conversation now focuses on where and how the U.S. can continue to detain these people.

It is sad that there is so little uproar about the facts disclosed in this last paragraph. The media have been unquestioning on this most crucial question (an exception can be given to Warren Olney for this coverage) and liberal and conservative political figures have indicated that the shutting of Guantanamo may, in fact, be too liberal an action. This begs a rather interesting question. Would Obama’s statement indicating that certain detainees will be imprisoned indefinitely without trial be as unimpressive if it were not uttered in the context of a political battle to close a questionably legal detainment facility and a broader War on Terrorism? If I break your vase during an earthquake, would you notice or care?

Gazing into the mad buzz of news and editorial, I see little evidence that people either notice or care. The great American canvas is almost devoid of its once robust deference to innocence until guilty. It is in the shallow spaces of a vacant conscience that our president can ask us to pursue al Qaeda and its affiliates with an “abiding confidence in the rule of law and due process; in checks and balances and accountability” and then, as if in a whisper, let mention that we will imprison people without trial or judgment. The argument of the administration has not changed or improved upon arguments long used by fearful mobs that would desperately prefer safety over liberty. If you think a person is really dangerous, the evidence against them need not be as strong.

The case against the category five detainees is strong (though, this is taking them at their word), but it would not survive a courtroom. Much of the evidence gathered is circumstantial. For example, Mohammed al-Qahtani went to meet with Mohamed Atta, one of the 9/11 hijackers, at an Orlando airport on August 4, 2001. Upon arrival, he was apprehended due to his suspicious entry documents and taken to Guantanamo Bay. There he was tortured and confessed to plotting and trying to participate in the subsequent terrorist attacks. Susan J. Crawford, a “convening authority” of military commissions, said of Qahtani “there’s no doubt in my mind he would’ve been on one of those planes had he gained access to the country…He’s a muscle hijacker…a very dangerous man.” Just so.

Clearly, it is probable that Qahtani was meeting with his accomplice to commit an attack on the U.S. Therefore it is indeed probable that Qahtani is a very dangerous man. But if our country’s judicial metric is calculated on the amount of danger a particular suspect poses, we should be greatly concerned. Suppose that Qahtani was not apprehend before meeting with the 9/11 terrorists but was apprehend en route to a neo-Nazi rally where lynching, rape, and the firebombing of several shops and houses all took place. Would those events be sufficiently dangerous as to make unnecessary the fair trial of a potential participant?

Also remember that Mr. Qahtani admitted to guilt after being tortured. The reason they call it “tainted evidence” is because information garnered from torture is de jure inadmissible in a courtroom. The moment the case against any of the detainees that had been tortured was brought to trial, a judge would be forced to throw out the trial. While no right thinking interrogator would consider torturing a suspect, the combined urgency of the mission and fleeting thought to the possibility that the individual would face trial, altered the equation. Additionally, prison officers had reason to believe they were not inflicting torture. Nevertheless, the suspected terrorists (category fivers), imprisoned for years without trial, humiliated, and exhausted by luckless legal appeals, must remain incarcerated forever because they gave way to interrogation now agreed to be torture – how Hobbesian!

Those that claim the decision regarding what to with the category five detainees is difficult have it exactly backwards. The decision is not at all difficult. If the administration will not provide detainees (and any individual it arrests) fair trial and full rights under the law then they must immediately release them. I am sorry for anyone that does not understand this most fundamental point (and sad to imagine how many there are) but rights and laws are either immutable or they are not. No president should be able to say:

“the Declaration of Independence, the Constitution, the Bill of Rights are not simply words written into aging parchment. They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity in the world,” in the same speech where he announces his willingness to imprison people indefinitely without trial. The ideas are antithetical.

The American people and their conscience will be improved if fear and suspicion are jettisoned for the loftier aspirations of our founders. One of the best lines in any film was said by Joan Allen in The Contender: “Principles only mean something if you stick to them when it’s inconvenient.” It may well be inconvenient to release detainees who we can be reasonably confident will restart their work to attack us. But now, since we are confronted with the choice, our principles must start to mean something.

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