14 May Blue-Ribbon Commission on Guantanamo?
That’s the bottom-line of thoughtful columns from Stuart Taylor and Karen J. Greenberg. (Hat-tips to Ken Anderson and Diane Amann respectively.) It’s a harmless proposition, but it has an almost throw-away feel to it. One couldn’t, I don’t think, expect anything substantively interesting from such an undertaking. Bipartisan study efforts (calling Lee Hamilton!) seem invariably these days to end up with lowest-common-denominator mush. If you want to exploit expertise, then bring in the likes of Jack Goldsmith, Curt Bradley, Elisa Massimino and Ken himself — all on Taylor’s list — on a quiet, off-the-record, individual or small-group basis. That’s something any sensible Administration would do as a matter of course, at least via Policy Planning and other in-house think-tank arms of the bureaucracy. The only thing an official, blare-the-trumpets commission report supplies is political cover.
That’s something an incoming president might need, of course, especially a Democrat one. As predicted, Congress is dropping the ball on this one, punting on a major opportunity last week to scale back the Military Commissions Act (that notwithstanding strongly-worded same-day lead editorials from both the NY Times and Washington Post). I don’t think we can expect any major legislative action on detainee treatment before the elections.
Given GITMO was chosen to be a legal black hole – if we do not want a legal black hole why not follow McCain’s proposal of transferring all of the detainees to a US brig stateside? He loves the 4th Circuit – I would put the detainees in each of the circuits so we do not have the 4th circuit monopoly. We would then close GITMO. So be it for detainees to have statutory and constitutional rights, if any. We do not want a legal black hole. As to indefinite detention without charge, change that: First, is to have assured periodic ICRC access for detainees and end all secret prisons or extraordinary renditions to torture. No more BS. Prosecute those in our government that ordered, aided and abetted and have them sit in some cells. Refluat Stercus! Second, a reasonable review process for detainees that meets true due process. Scrap these kangaroo Military Commissions. Third, why not think very simply in terms of a) til the end of hostilities b) til no longer considered a threat whichever is earlier. For b) no longer considered a threat, factors that would be examined would be i) health or infirmity ii) age iii)… Read more »
I have never understood why the indefiniteness of detention is such a hot-button issue. First, no prisoner of war in history, or any one else held as a combatant be it illegal or legal for that matter, has known when the alleged hostility would end. Simply put, nobody knows when a war or a hostility will end, and to give Al Qaeda members a de factor time limit as to how long they can stay in a brig is absurd. Second, when the hostility with Al Qaeda definitively ends, I am pretty sure we will all know it. Maybe all American troops leave the Arab peninsula, maybe there is an agreement again to the accords in Northern Ireland. The point is, why this obsession with pre-determining an end to the “war” when history shows us these things do have ways to determine when the conflict is over and the prisoners can be realized. Until that day comes, there is no reasons to let someone go for “good behavior” and to even say so shows a fundamental ignorance of the current conflict. I think the point about ICRC and Geneva are fine, but the point about time is out of left… Read more »
The NewStream Dream: I am pleased to suffer from fundamental ignorance. The essence of the “good behavior” point is the idea of the discretion of the state to release a person – for example a prisoner who actually helps us a great deal or who is of no interest anymore. If one prefers “discretion” to “good behavior” – happy to use it. I do not think it changes much of anything. For example, we can note the number of people who have been released in Iraq before the end of hostilities over the years after being first held as some kind of security risk. As to the difficulty with indefinite detention, in a conflict that has at least as much if not more murkiness than the Cold War (i.e. without the clear presence of the Soviet Union), I am less sanguine about our ability to know when it is over. Al Qaeda regenerates and the conflict keeps being spread to “Al Qaeda inspired” or “Al Qaeda fellow travelers” or – as in starting the War in Iraq – to completely “Al-Qaeda unrelated”. When Zawahiri or Bin Laden die, Al-Qaeda does not end then – it just morphs. On any given… Read more »
I don’t think holding someone until the hostilities are over is an affront to human dignity. In fact, I don’t really see a legal hurdle in doing so, unless you can point to something besides a “troubling intersection” of a bunch of different concepts, provided again that the person being held is treated in accordance with Geneva etc. If the Bush administration knew what it was doing, it would just declare all these guys POWs and then just let them sit until the end of the hostility. If that is not in their life-time then so be it. I think we can agree that, as of right now, the hostility is active. Tell you what, when you think some event changes that, let me know, then I will care and we can debate if this is a true turning point. Until then, why try to set an end-date especially in light of the fact that people being realized from Gitmo are turning up on the battle-field again. Finally, left in the United States is only right of much of the rest of the world if your “world” is Europe, which is likely. As well documented, people on this board do… Read more »