Neither domestic law nor international law, such as it is, adequately
envisioned how to deal with (mostly but not only) men who wage war in--how do we term it?--unconventional and exceedingly gruesome ways.
They are not properly criminals, and I find it more than tragicomic that
the United States is still trying to figure out how to deal with these
miscreants while abiding by habeas corpus and other delicate
provisions of the constitution. It is not as if these men were
picked up on the streets of Dallas after shooting up a bank in order to
buy chemical fertilizer for making a bomb. That would be easy for
the cops, the agencies of justice and the defense. But their deeds,
some of them conceivably minor in historical terms, are not the stuff
with which district attorneys or U.S. attorneys properly deal.
And these 250-odd left in Guantanamo are certainly not military personnel in the legal sense either, wearing uniforms, having rank, grasping what rights they possess and do not possess as a captive according to the accepted and, indeed, enshrined rules of war.
If common sense were to govern here, frankly any rude justice would do.
But common sense does not govern here, and it certainly didn't govern under the Bush administration. It, too, tried to square the circle. It happened on the procedural fix of military tribunals which candidate Obama promised to end. He was for sure not insincere when he made the pledge. Yet this was, the elected president found out, something he could not do. "No, we can't." Surely, it is better than that he pretend. There will be other easy answers that will turn out to be rather more complicated than he and his advisers assumed. So Obama will do as best he can. Government, like life, is always a compromise. (Oh, is that an original thought!)
During the presidential race, Obama treated Guantanamo not as totem but as taboo. It was to be done away with. That is still the president's position, as he reminded us in a much-publicized speech on Thursday. But the Senate had, with virtually unanimous Democratic support, already rejected his request for an $80 million appropriation to close down the detention center. (Yes, it costs a fortune to close down a penal institution.) There are, it is true, no settled plans as to where the remaining prisoners will be detained. In America? With various allies? Send them home to detention centers in Yemen or whatever Muslim country wants them, which most don't. Even let them free. I heard on N.P.R. today some American lawyer for one of the detainees say he would welcome his client and other prisoners of whom he knows living in his own neighborhood. But what about his neighbors?
They do not want any of the incarcerated brought to the country. And neither do their elected representatives, Republicans or Democrats. Except that the Democrats made a campaign fetish of emptying Guantanamo--as you can see without thinking for a moment as to what would replace it.
France and England have, breathing hard, said they would each take one. But these countries have plenty of their own local terrorists, thank you, and thanks also to the European fashion of multiculturalism. They don't need the detritus from the American naval base in Cuba.
Being sent to a prison in an Arab country means that they'd first be tortured (just for fun) and then they would somehow escape, many of them returning to their old terrorist work. After all, Guantanamo likely did not offer them alternative employment skills. Elizabeth Bumiller has a story in Thursday's Times about a Pentagon document reporting that one out of seven of the 534 prisoners already released have gone back to their former trade. That's a lot of recidivism.
Now, I think that the Guantanamo fetish is actually just a fetish. And I don't believe that putting these degenerates in U.S. maximum security prisons, those already existing or those to be newly built, would imperil American lives. But I don't make these decisions. They are made by the vox populi or its designated surrogates. Maybe a new facility could be built on Guam or Wake Island, both American territory, so that some constitutional guarantees would still be theirs, as they wouldn't, say, in Saudi Arabia. There's one other plus here: the mischievous A.C.L.U. lawyers would have to undergo punishing trips to get to their clients. Still, as I recall from the war movies, these vestiges of American colonialism--now, there's another cause!--have wonderful all-year weather, certainly too good for these bastards.