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) good behavior iv) agreement with home country with torture, CID protections on returning them home.
To eliminate the indefiniteness of detentions, we could set a cap of a certain number of years 10-30 as the maximum period for such a detention. We move from indefinite to more of an indeterminate. Obviously have to make sure that the length of detention is consistent with not imposing defacto life sentences. Mandela – a true terrorist in the eyes of the Aparthied government – still had a 27 year sentence in South Africa folks.
The high value security risks are charged for alleged crimes. The low value are given a path out that may be long but it is not indefinite detention.
Fourth, rather than a shell game – same basic structure applies to persons held anywhere in the world.
Fifth, make sure all of this is Geneva compliant.
Please no blue ribbon panels – that is a long twisting of the process of holding these people to further delay the substantive analysis of their status and the questions of what their treatment has been and should be
I beg to differ with the view that Jack Goldsmith has left this administration with his reputation intact as is noted in one of the posts to which you cite. Please see Jose Alvarez, Torturing the Law in last year’s Case Western International Law Journal.
By framing the debate in the way the papers do it – Amnesty is one extreme – the discussion misses the point that maybe Amnesty is not the extreme, Amnesty is the normal and our government is the extreme. It is not just about pragmatic shifting to a middle ground that can always be moved by one side just staking out ridiculous positions (see the 2002). It also is about standing on principle and making sure that even detainees we abhor are not treated as animals as they are human.
Like trying to find “middle ground” between segregationists and civil rights in a form of segregation lite. Sometimes things are just wrong that our government does and we need to have the gumption to change it – Democrat or Republican.
Let us not go down a path of acquiescence to illegality in the name of some legitimizing process. What is wrong is wrong.
Best,
Ben
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 field, and I do mean left.
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 day, some person in the world who hates the United States can declare jihad and call themselves Al-Qaeda and do something. Does that mean these are the continuation of hostilities? If one reads Tenet’s book, one gets a sense of how murky this all is.
President’s Bush’s declaration of the mission accomplished in Iraq does not appear to have been good enough to mean end of the hostilities. The election of the Iraqi government is still not the end of hostilities. Killing Zarqawi is not the end. Hanging Saddam is not the end. And on and on. Until September when Petraeus gives his report? One or two more years as requested by Talabani? Now once the draft legislation that Al-Sadr supports that has the support of a majority of the members of the Iraqi Parliament – but not the government. And on and on.
There is little interest in the state declaring the end of hostilities (what if we were wrong? the central fear of the Executive daring to say that. It is also difficult to discern what exactly end of hostilities would mean. I doubt we will have folks across the Middle East holding hands and singing “We are the world” in some Kumbaya moment.
There is an intersection of international humanitarian law, human rights law, diplomatic protection law, and criminal law that is troubling when one looks at the prospect of indefinite detention by a state of human beings – no matter how much the state loathes them – even in an armed conflict. I guess you have had to have someone held in indefinite detention like my godfather was in Liberia after a coup or have known of the detention of Wole Soyinka in Nigeria during the Biafran War to have some concern about it. Or read Goering’s rationalizations for the camps at Nuremberg to deal with persons considered “security threats”.
In such a murky indeterminate struggle, no doubt through fundamental ignorance, I am hesitant to trust the state to treat humans – even ones we abhor – consistent with human dignity.
I did not think that worries about human dignity were left or right. Anyway, left in the United States is probably right in much of the rest of the world. So left is right.
Best,
Ben
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 nothing but critique the U.S. and little if anything over what happens on a daily basis in Arab states, or Russia, or China. Why Europe is the moral comparator is beyond me …