For Americans concerned about our country's prestige, closing the detention camp at Guantanamo Bay and ending the much-maligned "military commissions" system of trying "unlawful combatants" seems like common sense. They are ugly symbols of a post-9/11 America for which any principle is secondary to paranoid self-interest. Closing down the notorious facility and giving detainees their old-fashioned "day in court," they maintain, would do wonders for our international reputation and national psyche. Presidential candidates Hillary Clinton and John McCain, columnist Thomas Friedman and Secretary of Defense Robert Gates have recently exhorted one or both of these measures.
But the devil is in the details, or, in this case, the detainees. Along with memories of repulsive prisoner abuse by U.S. military personnel, hundreds of dangerous enemy fighters remain at "Gitmo," including 9/11 mastermind Khalid Sheik Mohammed. And, as the United States continues to fight terrorists in Afghanistan and elsewhere, the unpleasant truth is that it will capture suspects and require a secure location to keep them. Guantanamo can be closed, and perhaps it should be if only for its symbolic value, but they must remain in our custody somewhere.
Or must they? Human rights advocates contend the irregular nature of ongoing hostilities against terrorist groups should disallow the United States from holding detainees. Applying the "prisoner of war" standard to this new form of conflict, the U.S. government could effectively hold suspected terrorists forever without trial.
Yet, as conventional wars did not end according to a predetermined schedule and could theoretically have gone on for decades, this was hardly a neat or concrete guarantee. It also doesn't strike me as an adequate rationale to let suspected terrorists run wild.
An additional problem is that while the majority of detainees at Guantanamo were incarcerated for their participation in the ground war against the United States in Afghanistan in 2001 and 2002 and at least approximately fall under a legal definition of "prisoners of war," some are suspected terrorists whose capture was unconnected to a broader material conflict. Surely in these cases the U.S. government cannot appeal to the "war prisoner" justification — the status of these individuals is more similar to that of suspected civilian criminals, and like them, there must be a higher burden of proof regarding detainees' culpability.
The United States has addressed this tenuous situation by attempting to determine which of those under its custody are actually guilty of crimes against the United States to legitimize their captivity. Unfortunately, the system they devised to accomplish this, the "military commission," was so poorly designed that the Supreme Court deemed it unconstitutional in 2006's Hamdan vs. Rumsfeld. The Bush administration has since implemented a revised form but has placated few of the program's many critics in the process.
Among remaining deficiencies, the commissions allow the president to declare anyone he chooses an "unlawful combant," including U.S. citizens, and make them appear not before a jury of peers but a commission composed exclusively of members of the U.S. military.
In the meantime, however, we need to consider positive action to the same extent that we are currently advocating negative measures. Simply abandoning the Guantanamo prisons or shutting down the military commissions will not do; after all, we need a place to hold detainees and a separate legal system to try them. Instead of speaking and thinking in absolutes, we should narrowly identify what is problematic about these institutions. The aforementioned prominent individuals were right to call out the system, but it is now incumbent upon them to propose practicable reforms.
It may be in the end that seeking rational definitions and procedures to deal with a phenomenon as irrational as terrorism is a political case of attempting to drive a square peg through a round hole. But even if there are no perfect solutions with regard to our detainee crisis, and even if we can't (and perhaps should not seek to) appease the entire international community, this nation of lofty ideals can and must do better.
John Sprangers ([email protected]) is a senior majoring in international studies and political science.
