Aaron Zelinsky on Lockerbie and Guantanamo
Aaron Zelinsky, YLS ’10, smart person and occasional correspondent with me, has an article up at HuffPo arguing for a certain parallel (a negative one) between the Lockerbie release this week and the Guantanamo detainees. Aaron argues that it was wrong for the Lockerbie bomber to have been released, and would not have been, had he been tried and convicted and held in the US, not Scotland, which had arguably less of an interest in the case than the US, at least as measured by nationals lost. Likewise, Guantanamo detainees should be brought to the US for trial and serving of sentences if convicted, so that some foreign jurisdiction is not able to let them go. The article can be found here. Here is a bit of the argument:
After President Obama pledged to shut down Guantanamo, Congress passed legislation prohibiting the transfer of any ex-Guantanamo detainees to the U.S. mainland. As a result, the Obama administration is now feverishly negotiating with foreign countries to take Guantanamo detainees. Once these detainees are transferred, the United States will lose control over them. Even if some are convicted for crimes against Americans, we will have no say as to their sentences, paroles, or future “compassionate release.”
There may well be innocent men on Guantanamo. We thus need a full and fair process to evaluate their respective guilt, and thereby release the innocent. However, Guantanamo also likely holds terrorists who helped plan and carry out attacks against Americans.
If these men are convicted in a full and fair proceeding, they will face significant jail sentences, just like al-Megrahi. These sentences should be served in the United States, not overseas.
If instead all Guantanamo detainees are sent abroad, the United States will lose jurisdiction over them. In a few years, for example, self-proclaimed 9-11 mastermind Khalid Sheik Mohammed could be released by a foreign nation on “compassionate” grounds. Moving Gitmo detainees abroad is an easy course of action now, but it has troubling long-term consequences: the loss of U.S. control over the punishment of those detainees who, after due process, are convicted of killing Americans.
For various reasons, I probably don’t buy the aptness of the connection of the Lockerbie bomber’s case to that of the Guanantamo detainees. To start with, the most difficult Guantanamo situations are those in which you don’t think you could obtain convictions in any ordinary criminal trial, and yet you neither doubt objective guilt and for reasons of imminent forward looking public safety will not the person go. I do think Aaron has a point about releasing people whose activities were fundamentally about Americans into the hands of people for whom the safety of Americans is far from a paramount concern, whether that be a Scottish court or a Saudi prince. Anyway, Aaron’s pieces are always an interesting read, agree or not, and I recommend checking this one out.