Aaron Zelinsky on Lockerbie and Guantanamo

by Kenneth Anderson

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.

http://opiniojuris.org/2009/08/20/aaron-zelinsky-on-lockerbie-and-guantanamo/

2 Responses

  1. Dear Ken,
    I do not understand the comparison at all, but I also find your comments puzzling. Do you consider that when actions are “fundamentally about ” Chileans, somebody should be tried in a Chilean court (e.g. those who assisted Pinochet in organizing a coup some years back), when actions are “fundamentally about” Japanese, somebody should be tried in a Japanese court (those who ordered and executed the bombings in Nagasaki and Hiroshima), when actions are “fundamentally about” Iraqis, somebody should be tried in Iraqi courts (…)? Aren’t there other interests and considerations at play?
    Moreover, has somebody seriously suggested that the person in question is still a danger to the “safety of Americans”? I find this statement – and the comparison based on such a premise – quite strange, just as the statement that Mr. El-Megrahi, a dying man, would not be released under any circumstance if it were not for the fact that he was detained in Scotland. Most civilized countries have protections against cruel and unusual punishments, and this definition – in many countries – includes detention during the final stages of a terminal disease. There is nothing strange about this.
    BTW, in many European countries, the accused in this case, not having exhausted his appeals possibilities, would not be considered guilty, yet – as only a final judgement should be able to attach such a stigma to him.
    Apart from the families and friends of the victims, with whom I completely simpathise, others should comment on this matter a bit more objectively. The deaths of so many innocent people is an incredibly tragic criminal event, but unfortunately it is not such an uncommon occurrence in the contemporary world. The fact that many of these were US nationals should not make any difference for lawyers.

  2. Guy, I didn’t mean anything as legally profound as the questions you raise, to be honest.  I just mean, regarding where to try, that there are various possible and sometimes conflicting possibilities for jurisdiction, and that one is how many of ‘your’ nationals were involved, versus, say, the fact that the plane happened to detonated passing over your airspace.  I don’t mean to make a legal statement about jurisidiction.  As for compassionate release, I’m adopting, without necessarily agreeing one way or the other, with Aaron’s view that it should not have been granted and would not have been granted by a US court.  Apologies for not making that clear – probably the best thing is to read Aaron’s piece and judge it on that basis, rather than my summary.

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