I was pretty happy when I read that Guantanamo detainees are finally getting their day in court, and those that are being held on illegitimate or ill-gotten evidence are being released. There is a lot of talk among people and particularly the news media that Guantanamo stands for everything that the Bush administration has done wrong with the war on terror. As a result, there have been many demands to close the camps and many promises to do so, from Secretary of Defense Robert Gates and President-elect Obama. Yet it remains open. I have often wondered why, and Benjamin Wittes explains it in his editorial in the Washington Post on Friday. He also raises a big question that has a lot of interesting possibilities that flow from it: what happens to all of those detainees that are held there. Wittes isn’t the first person to ask this question, but I wanted to start a conversation on the blog about what people here think should be done.
The first thing to consider are the different types of prisoners being held in Guantanamo. Wittes lays out three groups. There are prisoners like those released last week, who are being held based on little or evidence obtained through torture. I think most people agree that we should figure out who these people are and release them. A second group of prisoners are those that are going to be criminally tried based on reasonable evidence either in Military Commissions or federal courts. I think most people feel comfortable holding on to these prisoners. The last group are those that the government feels are dangerous based on credible evidence, but the government lacks enough evidence to actually bring them to trial.
I’m curious what people think should be done with groups two and three. I have personally struggled with this a lot. This is war, right? Many of these (what I would call) dangerous prisoners are more like prisoners of war than prisoners being accused of a crime. My general understanding of the Geneva Conventions is that POWs can be held until the end of the war and then released. But when does this war end? Two years ago, I would have said that everyone captured in Afghanistan should now be returned. But these days, it looks less and less like that war is actually over. If these prisoners are alleged members of Al-Qaeda, then perhaps their release shouldn’t depend on when the war in Afghanistan or Iraq is over, but rather when the amorphous war on terror ends. But that doesn’t seem fair either, because the US is the final decider of when that war is over.
If some or many of these prisoners continue to be held after closing Guantanamo down, where should they be held? If they are held in the US does that entitle them to all sorts of rights Bush would rather they not have, but perhaps they should have? It probably does, as some of the dissenting opinions in Hamdan and Hamdi indicated that their decisions are based on the enemy combatants being held outside of the territorial US. Personally, it feels unfair to me to hold people in the third group (where there is not enough evidence for trial) until the end of this amorphous war. I also think it makes the US look bad and subjects its soldiers to even more risk if they are captured. But, I feel pretty conflicted about it. Any thoughts?
I don’ t know what to do. But if the people in groups two and three didn’t “hate ‘Merica and freedom” before being imprisoned, then they most certainly do now. Should the person’s new-found hate for America be a factor in the analysis of whether to release him? On one hand, the person’s new hatred increases the likelihood that he will be involved in future attacks or operations against America. On the other hand, if he have been imprisoned unfairly, then his anger is perfectly justified and (probably) shouldn’t be held against him. It’s a sticky situation.
” . . . if he has been . . . .”
maybe we could just put them all on some prison colony planet in the future where they just have to fight for the rest of their lives…
Wittes points out what is definitely true about this situation, which is that there is no easy answer. There might not even be a difficult answer.
The issue highlights a part of the legal world that I find difficult sometimes. I think Professor Butler used to try to get us to come to terms with it in crim law when he would make us raise our hands and vote on the outcomes of cases.
We (“we” Americans I mean) don’t get to make laws on an individual basis. They have to find a way to address all sorts of competing tensions and find the balance. We have to make laws that cover a range of situations and a range of people, and there will be people and situations that fall through the cracks. There will be occasions of abuse. There will be times when the results don’t seem fair.
Obviously a court can look at an individual case and determine the facts and how the law was applied and make more individualized decisions. But our laws act everyday in ways and on people that aren’t challenged in court.
In this particular situation, there’s that tension – freedom vs. security. We can look at Hamdi and Hamdan and other individuals. And we can create categories to help us do that. It does help. But at the end of the day, somebody has to raise their hand and vote. Do we keep Guantanamo open? Do we close it? What do we do with the people there? Group 1, Group 2, Group 3? The choices that they make may lead to some of the detainees having more individualized attention about their particular situation. And I think there’s no way that they choices that they make aren’t going to lead to some negative results – some people being wrongfully held, some really dangerous people being let go.
But the choices they make are also going to be used to address the situations of detainees years and decades from now. And that’s one of the things that I think is really difficult about the law sometimes. It’s not just about our country right now and these detainees. We may want it to be, but the choices that are made around this issue aren’t being made in a vacuum. They’re going to be relied upon by lawmakers and lawyers and judges for decades, maybe longer.
I don’t know what the answers are. My understanding of these issues is limited to Con Law I, and I sure hope that the folks making these choices know a hell of a lot more than I do.
Regarding those that are suspected but we lack evidence to prosecute, a lot of prisoners are in Gitmo because the US offers monetary awards to people in for information that is rarely verified before the US takes the accused into custody. It’s an incentive program that rewards information whether it is true or false and it is implemented in parts of the world where people are desperate for money, food , shelter. This, as well as Adam’s really important point about creating terrorists in our prisons are covered in the movie, Taxi to the Dark Side which I highly recommend to people interested in this subject. In my opinion, prolonging the wrong does not create a right. If our inhumanity has created more hate and fundamentalism we need to deal with that and not continue down the same road. And I think dovetailing with Katie’s point, we need to think of the implications the situations in Gitmo, and Abu Ghraib and Bagram have on our own troops: how will other countries treat our captured soldiers if we persist down this road?
“We (”we” Americans I mean) don’t get to make laws on an individual basis. They have to find a way to address all sorts of competing tensions and find the balance.”
I feel like this is one of these situations when maybe we should avoid making broad laws or choices that will be precedent for the future. As Adam and ebwestbrook pointed out, beside the problems we started with, we’ve created more problems. The more I read about this, the more I think that creating these categories isn’t productive. Many of these prisoners are innocent and have been through enough. Perhaps a closing of Guantanamo should require some sort of independent panel of judges to review the situation of each prisoner before that prisoner is sent to another detention center. As ebw points out, the evidence in some cases is sketchy at best. Impartial, non military judges would hopefully be able to pick those cases out and send those people home.
Everyone has brought up such good points here, but in the end, an individualized, time consuming assessment might be the most moral way to go.