President Obama has recently announced his intention to close the detention center at Guantanamo Bay. As a statement of principle, this is unremarkable. President Bush repeatedly stated the same policy goal. However, Obama has set a deadline of one year, which would appear to end the process of kicking the can down the road. Given their ideological commitment to that goal, it is overwhelmingly probable that the one year deadline will be substantially met.
So now the national conversation must shift from whether to close Guantanamo to how to close it. This is not necessarily a bad thing, even if you are a national security conservative. Closing Guantanamo does not require conceding that it was a bad idea or an evil act. Back in the early days of the war, we had dangerous terrorist prisoners and we needed a quick solution to deal with them. Guantanamo was probably the best hasty solution that could be devised at the time. However, when you implement a hasty solution you must go back and put in place a more deliberate solution when time permits. For Guantanamo, that time has come.
Beyond that, Guantanamo Bay has engendered such controversy that it has become a nuisance and distraction far disproportionate to any benefits we might continue to derive from it. It is wildly unlikely that interrogations still yield useful intelligence or insight 8 years after capture, and there are other options for how to warehouse or dispose of the detainees. Thus the main function of Guantanamo is to serve as an excuse for our allies to complain and a recruiting tool for our enemies. It is simply no longer worth the aggravation.
The Guantanamo situation recalls the US Army School of the Americas, another left wing imperialist bogeyman. In the late 1980s, that activity became the focus of various activist groups opposed to US policy in Latin America. Eventually the Army tired of chasing protestors who slipped onto the base during the huge annual demonstration; in 2001 the Army renamed the school, moved the building, and revamped the curriculum. This did not stop the protests, but it largely succeeded in taking them out of the public eye.
Everyone knows the core issue with Guantanamo: what do we do with the detainees now housed there? This decision must be made after careful analysis of the national security implications of various courses of action, free of the emotion-laden and logic-free rhetoric tossed about freely by all sides in the debate. We conservatives are not immune to this tendency, as evidenced by various GOP politicians recently asking “do you want terrorists jailed in YOUR town?” If our federal maximum security prisons can safely contain serial killers and drug lords, they can handle an obese Khalid Sheikh Mohammed. Such silly demagoguery only undermines our credibility precisely when we need to be seen as the serious adults on this issue.
The detainees at Guantanamo can be broken down into three categories: terrorists, lawful combatants, and hapless dupes. To arrive at a solution acceptable to all, we must sort the detainees into those categories and then treat each group according to accepted norms for their legal status. Inevitably the sorting process will be imperfect, but some impartial process must be devised to accomplish this result. It is simply not politically viable to treat all detainees as having the same status.
The terrorists are actually the easiest to deal with. They need to be tried and sentenced in a reasonably fair manner. This must include the prospect of the death penalty for those deserving of it. If they are found innocent, well that sucks; but it sucks whenever a guilty murderer walks free too, and we accept that as the price of an impartial system. We need to have faith that our system of justice is strong enough to mete out justice for the most vile offenders, however imperfect the results may be.
Of course the “reasonably fair manner” stipulation is the tricky part. In the view of the Supreme Court, the Bush tribunals are fair enough. That judgment is unlikely to survive the Obama administration, but that is their prerogative now that they run the executive branch. If they now decide to try the terrorists in the federal court system, then they are responsible for effective prosecution and they will be held accountable for the results at the next election. Rest assured that Presidential Obama does not want to explain a KSM acquittal during the 2012 campaign.
The hapless dupes are also fairly easy to deal with. Included in the detainee population are various unlucky persons who were simply in the wrong place at the wrong time, and in all likelihood were sold to us for a profit by bounty hunters. Most of these people have been repatriated already under various programs. A relatively small number are still in custody, mostly because they have nowhere to go. Most countries won’t take them, and the countries that will take them will likely abuse, torture, and execute them. Again, the system is capable of handling these people. If we can’t fob them off on an ally, or get reasonable assurances of fair treatment in their home countries, then we can release them under closely supervised custody in the US. That sounds crazy, but we do it every day with millions of parolees. Put a GPS bracelet on them, relocate them, give them a job in a controlled environment, and have the FBI sit on them like hawks. Yes, we’ll have to watch them for decades, but most of them will at some point assimilate or age to the point where we can be assured they are not a threat.
That leaves any “legitimate” combatants to deal with. In the view of many people, any detainee captured on the field of battle while fighting for the Taliban is a terrorist. While emotionally satisfying, this is simply not a just or legal position. Unless evidence exists that a detainee was personally involved in terrorist plots against US civilians, or otherwise personally violated the laws of land warfare, that person is a legal combatant and is entitled to be treated as a POW. Mere membership or affiliation in the Taliban is not enough. Neither is evidence of attacks on US troops. That is what enemy soldiers do. If they openly bore arms, had some distinguishing uniform or insignia item, and otherwise followed the rules, then we must treat them as POWs. It may be tough to swallow giving POW privileges to someone who killed US soldiers. I served in Iraq and Afganistan, I was on the receiving end of (unsuccessful) attacks, and I had friends who were on the receiving end of successful attacks. I can accept it because I understand that those are the rules we agreed to fight by. Insurgencies are always the dirtiest and most difficult wars to fight lawfully, but we have to try.
So we need a long term POW camp somewhere. It needs to have all of the trappings of the Geneva convention, right down to monitoring by the International Committee of the Red Cross / Red Crescent. Of course we are entitled to hold those POWs for the duration of hostilities, and so we should. Since Al Qaeda is unlikely to give up their war against us for at least a generation, the average stay at our POW camp is likely to be indefinite. Perhaps some repatriation process can be arranged for those who can reasonably assure us that they have no intention of continuing to fight, or are too old or ill to pose a threat.
This solution is unlikely to please everyone. Perhaps it will please no one. However, as the old saying goes, a successful negotiation is where all the parties leave a little unhappy. It is not going to be satisfying to put ourselves into compliance with various national and international standards for treatment of the detainees according to their legal status. It is also not going to silence our critics or placate our enemies. But it’s the best approach to putting the aggravation behind us so our national security agencies can get on with the more pressing business of decisively defeating the enemy.