Jeffrey Toobin has a lengthy examination of Guantánamo Bay and the detention of people caught in Iraq and Afghanistan. The legal battles over the status of detainees continue, as the Supreme Court is set to release the latest opinion concerning detainee rights in Boumediene v. Bush sometime in the next few months.
The real question is what we do when and if Gitmo is closed down. Giving members of al-Qaeda access to US civilian courts does not at all work. A terrorist suspect cannot be given the same rights as a civilian criminal—it’s unworkable to argue that they should have the right to confront their accusers when their accusers might be deep-cover CIA agents actively working against al-Qaeda. There’s a quantitative difference between the sort of evidence used in a criminal trial and the evidence gathered on the battlefield. We certainly don’t want to reduce the standards for civilian trials to the level of evidence gathered on the battlefield—but it doesn’t make any more sense to demand that our armed forces play CSI on the battlefield.
It’s tempting to give these suspects over to their home countries—but if human rights are a serious concern, that would hardly be a good idea. Someone who is deported to a place like Algeria or Saudi Arabia won’t have to worry about waterboarding being torture—instead they’ll likely end up being tortured to death or at the very least treated far worse than they are at Gitmo. For all the hyperbole about Gitmo being “the Gulag of our times” that diminishes the real horrors of the average Third World prison where waterboarding is just the appetizer.
Toobin believes there may be a solution for this problem:
Even if the commissions can somehow begin, the larger question of what to do with the remaining detainees is, for now, unsettled. One response to that quandary is a controversial proposal, by the law professors Neal Katyal and Jack Goldsmith, that is attracting a great deal of attention in the small world of national-security law—and which may offer an electoral lifeline for the Republicans this fall.
Katyal and Goldsmith make unlikely allies. A law professor at Georgetown and former Clinton Administration official, Katyal won widespread renown when he argued and won Salim Hamdan’s case before the Supreme Court in 2006. Goldsmith is a former Bush Administration official who, despite leaving the government in 2004, in part over concerns about civil liberties in the war on terror, remains a strong national-security conservative. (He is now a professor at Harvard Law School.) But the two men shared a conviction that both military commissions and ordinary criminal prosecutions would be impractical for a few of those captured on distant battlefields. Together, they came up with an alternative: a national-security court.
According to their proposal, which was recently the subject of a conference sponsored by American University’s Washington College of Law and the Brookings Institution, sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained. There would be trials of sorts, and detainees would have lawyers, but they would have fewer rights than in a criminal case. Hearsay evidence may be admissible—so government agents could testify about what informants told them—and there would be no requirement for Miranda warnings before interrogations. Some proceedings would be closed to the public. “It’s a new system that’s needed only in extreme circumstances,” Katyal said. “It’s not a default option.”
Not surprisingly, civil libertarians do not like the idea. The problem is that their preferred solution of going through civilian courts simply does not work. Terrorism is not a crime, nor is it like ordinary warfare. Rather it is something that is sui generis, a category all to itself. Treating terrorism like a crime does not work, nor are terrorists properly “combatants” as defined by the Geneva Conventions. (The term “unlawful combatant” is not a term invented by Bush Administration lawyers but one that is inherent in international law.) The laws of war allow us to keep these people off the battlefield for as long as there are active hostilities—which in this war is not a definite term.
The overheated rhetoric from the civil liberties groups doesn’t help. Gitmo is not a “gulag” nor is it some legal black hole. We as Americans face a difficult problem that requires creative thinking—and instead we have the Gitmo issue being used as a political talking point. If we close Gitmo, we had better have a viable solution for what we’ll do with the people being held there. Trying them in civilian courts is not a viable option, nor does it seem likely that the Supreme Court will allow for the current system. At some point, there will need to be a compromise, but that will require all sides to work together rather than merely pointing fingers at each other.