Captain Ed says:
I actually prefer the method that Justice Stevens explicitly left open to the Bush administration in his opinion: leave them detained until hostilities cease in the war on terror. Radical Islam does not leave many deterrents to its lunatic pawns. Death in combat or a summary execution suits them fine. Public trials give them the opportunity to exploit our civil justice system as platforms for their screeds, as Zacarias Moussaoui showed. However, the perpetual and anonymous detention offered by Stevens does give the terrorists the one situation they find most repellent — and that could persuade at least a few of them that taking on the US holds nothing but a miserable stretch of decades in an iron cage, with no public outlet for their hatred.
Failing that, the military tribunals clearly give the US the most efficient system of handling these detainees. Terrorists captured on the battlefield or in conspiracies against us abroad do not have any rights to access our civil system, nor to invoke the normal issues of Miranda rights and revelations of intel techniques. Congress is making the right decision in explicitly filling the gap that the Supreme Court left in its decision.
Rather than dismiss Cpt. Ed’s claims, I’ll take them seriously. He’s right that a hardcore jihadist is not going to be deterred from attacking the United States by the prospect of death, nor be overly daunted by the prospect of having a public trial. Gitmo, as it currently operates, does provide some minimal level of deterrence. Even a fearless suicidal terrorist cannot relish the possibility of being held indefinitely without charges, tortured, and sexually and religiously humiliated. And that hold’s true no matter how good the chicken and rice pilaf. But Captain Ed misses an essential point. As I pointed out in an earlier post:
One hundred and eighty people have been outright released from Guantanamo Bay. That is 24% of the people that have been detained there. Nearly one in four of the detainees were not considered dangerous enough to warrant their continued imprisonment.
One hundred and eighty people were subjected to the hardships of Guantanamo but were later deemed innocent (or at least, not overly dangerous). Setting aside the plain fact that that represents 180 gross miscarriages of justice, he need to ask if these victims’ treatment was necessary collateral damage? And, even if we grant that it is inevitable that some of the innocent will be swept up along with the guilty, we need to consider that a 76% success rate is very poor. In debating Guantanamo we can never forget that many of the people detained there are, or were, not guilty of plotting violent acts against the United States. Captain Ed simply ignores this fact.
Terrorists captured on the battlefield or in conspiracies against us abroad do not have any rights to access our civil system, nor to invoke the normal issues of Miranda rights and revelations of intel techniques.
Why would Ed say that? Because he is begging the question. He assumes that all the prisoners in Gitmo were terrorists or engaged in conspiracies against us. In fact, we’ve already admitted that a quarter of them were not. The question is, how can we sort out the good guys from the bad guys without creating a system that makes it difficult to deal with the bad guys? Ed just assumes the guilt of everyone, which sort of obviates the need for a trial, or for any of the rights accorded to human beings that face trial.
What Ed needs to recognize is that the Bush administration has created a sort of worst of all worlds situation. Once they engaged in ‘intel techniques’ that violate the Uniform Code of Military Justice and the Geneva Conventions, they lost the ability to ever bring bad guys to criminal or courts martial. They created a situation where the only way to deal with them was through some extra-legal military commissions. And, they didn’t have the authority to override the Geneva Conventions and UCMJ. Congress is now left in a quandary. They do not want to leave the prisoners in Gitmo for the rest of their lives without any judicial review. And they do not want to retroactively authorize the use of cruel and degrading treatment, so that information gleened from torture can be admitted at a military commission trial.
I have no idea what they will ultimately come up with as a solution, but it didn’t have to be this way. It was the decision to torture people and expose them to religious and sexual humiliation, stress positions, and snarling dogs, that made it impossible to use a courts martial to handle the detainees. We have many laws that have the effect of assisting the criminal in order to protect the innocent. When dealing with foreign terrorists, we may find it necessary to set the balance more in favor of the prosecutors. We may find that special courts are required and that there should be some limitations on the kind of evidence that the defendant can see. But, we can never repudiate basic human rights and conventions against torture, nor can we admit evidence collected under cruel and inhumane conditions.
If Captain Ed believes that creating a Kafkaesque hellhole in Cuba has some deterrent effect, he should also realize that it has other negative effects. America loses the ability to lead on human rights. Having lost our reputation for respecting human rights, our soldiers in captivity are less likely to be treated humanely.
We would do better to be seen as scupulously upholding human rights, rather than holding people in secret gulags, desecrating their religion, and waterboarding them. Whatever deterrence we create with these tactics is fairly minimal, and is vastly outweighed by the negative consequences of breaking the law and acting inhumanely.
We beat the communists, not because we threatened to build the Stategic Defense Initiative, but because we upheld human rights, freedom, and liberty. We set a much better example. People looked up to us. They wanted to move here and enjoy our rights. They wanted to reform their own governments to be more like ours and less like Moscow’s. That is how we can beat the jihadists, too. Not by emulating a Stalinist state and using the threat of torture and indefinite imprisonment, but by setting a better example and offering a better future.
And, just on principle, torture and indefinite detention is wrong.
Alexander Hamilton noted the importance of habeas corpus in Federalist #84. Quoting Blackstone, he made the point.
“To bereave a man of life (says he) or by violence to
confiscate his estate, without accusation or trial, would be so gross
and notorious an act of despotism, as must at once convey the alarm of
tyranny throughout the whole nation; but confinement of the person by
secretly hurrying him to gaol, where his sufferings are unknown or
forgotten, is a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.” And as a remedy for this
fatal evil, he is every where peculiarly emphatical in his encomiums on
the habeas corpus act, which in one place he calls “the BULWARK of the
British constitution.”
The false assumption underlying all detentions of “enemy combatants” is that they are interested in attacking the US. All these (and many more) prisoners were captured in foreign countries fighting local battles for local objectives. It was the US that showed up on their doorsteps and interposed itself in their affairs.
The chance that some poorly educated non-English speaking person could enter the US and then carry off a significant attack is remote (9/11 notwithstanding).
The US insists on conflating local insurgencies, civil wars and other regional conflicts with our objectives as an empire. This slight of hand allows the (mis)use of military power in situations where normal policing or peace keeping is what is required.
Jihadists (or whatever the term of art is at this moment) are not interested in invading, taking over, or altering the US’s form of government. They are interested in getting power in their own countries. Using images of invasion is just as silly as it was during the Cold War. I suggest the classic movie “The Russians are Coming” to see how absurd it was then. It is still absurd.
Notice that the London underground bombers were all UK residents, not international “Jihadists”. One might as well call Timothy McVey a Jihadist. During the 1950’s the red-baiters were finding “Communists” under every bed, now its Jihadists or “terrorists”.
If the prisoners were actually fighting against us during a battle and they were captured in the process then they should be kept in POW camps, just like any other soldier would be.
That’s not quite true.
A study of the detainees showed:
I assume a designation as al-Qaeda has some tangible reasoning behind it. Like they were in KSM’s rolodex or something.
I’m sorry, which part of Who was not quite true? Green eggs and ham? sorry – seriously, which part were you saying wasn’t true?
The scariest part of what we’re doing to these people that are different is that the next step is doing it to anyone who disagrees.
The fact that the right wing is calling for the execution of MSM editors – on television, no less, (see SWIFT and the NYT) shows their true intentions. Dissent is wrong, evil, giving aid and comfort. We don’t have to prove anything or even bring charges – we’ll just make you disappear.
They’re arguing torture will save thousands of lives, which is of course bs. According to the Washington Post, Ron Suskind says in The One Percent Doctrine that they did torture Abu Zubaydah (sorry, made him “uncomfortable”) until he told them what they wanted to hear. Despite objections that he was an “insane, certifiable, split personality,” the FBI took his information and wasted intelligence resources on his leads. Of course, Bush portrayed the guy as “one of the top operatives plotting and planning death and destruction on the United States.”
http://hermelsdrivein.blogspot.com/2006/06/shadow-war-in-surprising-new-light.html#links
What the US is doing to the detainees and has planned for all of us is no different than what happens in any totalitarian society. Bureaucrats get to decide who gets arrested for whatever they want, whenever they want – as long as the victims are not connected to anyone in power. Welcome to Germany and Russia circa 1938, and China today (Bush’s role model – economic powerhouse with none of that democracy crap getting in the way). Ok, Russia today, too…
The chief true believer doesn’t get it but the high moral ground provided by the justice and compassion provides practical benefits. Just like following the Geneva Conventions helps prevent retaliation when US troops are captured; treating religious fanatics with justice prevents their poisonous beliefs from spreading into their families and culture. Treating rebels with contempt, torture and death assures that their families and tribes will fight to death against the foreign infidels. Genocide becomes the only way to pacify the insurrection.
Bush is a True Believer. Not one frown of doubt has ever crossed his face.
The primary purpose of the continued existence of the Guantanamo mass incarceration is to make sure those in the Middle East who might oppose the US presence there remain enraged enough that their recruitment efforts for jihad or insurgency continue to succeed.
Public trials give them the opportunity to exploit our civil justice system as platforms for their screeds, as Zacarias Moussaoui showed.
What a bunch of bull….Zacarias Moussaoui’s trial in no way gave “them” the opportunity to exploit our civil justice system as platforms for their screeds. He said his screed and he went to jail while people discussed among themselves that maybe mental health lockdown facility would have been a fairer place for him to spend his sentence. Killing them or executing them only grants them sainthood and fuels more insane violence, but spending your days quietly contemplating life out of all the spotlights is the answer for them as well as our very own American lunatic fringe lawbreaking Neocons. That bullshit about bringing them to trial is bullshit!
It seems to me that if you really can’t bear the thought of releasing the people who are held at Guantanamo or giving them fair trials, the only option is to declare them all POWs and treat them as such under the Geneva Conventions.
But whether or not we do that, there is no exception in the Conventions for torture, regardless of a captive’s status.
The real argument we are having here isn’t about martial success, national security, or the niceties of law; it is about whether we will meet our obligations to the Geneva Conventions as a civilized people, or breach those obligations and descend into barbarity.
Or whether we already have irrevocably done so.