History Forum / General / British History / March 2007

LAWFARE

The Gitmo Blues

Closing Guantanamo would hurt the war effort, and wouldn't appease the
critics anyway.

BY DAVID B. RIVKIN JR. and LEE A. CASEY

Tuesday, March 27, 2007
The Wall Street Journal

Winning a war is a difficult business under the best of circumstances. In
democratic polities, the prospects for victory dim whenever there is strong
domestic opposition, as there is today with respect to the handling of both
Iraq and the broader war on terror. But far from merely challenging a
particular military strategy or a discrete set of combat-related decisions,
many critics deny that the United States is fighting a war at all.

Yep, Pogue Gans takes that point of view.  -- DSH

Terrorism, they say, is a manageable problem that modern American society
must learn to accept as the price of its pluralistic institutions and role
as a global super-power.

Nothing illustrates this better than the continuing challenges to Guantanamo
Bay. Even European officials who have visited the American base acknowledge
conditions there--including housing, food, medical care and recreation--are
better than in most civilian penitentiaries around the world. What most
critics really object to is the entire "laws of war paradigm" that has been
employed since 9/11 by the Bush administration.

They refuse to admit that Terrorism cannot just be left to the Courts -- as
a Law Enforcement Matter.  Airheads that they are. -- DSH

Some claim, incorrectly but passionately, that the U.S. cannot be at war
with a non-state like al Qaeda, and that the classification of al Qaeda and
Taliban prisoners as "unlawful enemy combatants" violates the Geneva
Conventions. Others care less about the legal questions, but assert that
Guantanamo and the "war on terror" have done fundamental damage to the U.S.
diplomatic position around the world--sullying its reputation, straining its
alliances and undercutting its leadership of the international community.
Notably, the prescription of both the policy and law-driven challengers is
to close Guantanamo, and to abandon the "war on terror" in favor of an
internationally cooperative law-enforcement approach.

Yes, that's the Pogue Gans Strategy, in spades with pink bunting on it. --  
DSH

The critics rarely acknowledge that using the U.S. criminal justice system
would present numerous problems. The most obvious: It would be virtually
impossible to prosecute many al Qaeda detainees captured overseas by the
U.S. and its allies. This is not because, as alleged by the various human
rights organizations, they have been harshly interrogated and any evidence
obtained in the process would be inadmissible. The more fundamental problem
is the hyper-technical nature of evidentiary and other rules in America's
21st century justice system. Convicting people based upon physical evidence
gathered on overseas battlefields, or relying on testimony of soldiers and
intelligence agents who at the time of capture were operating in a stressful
combat environment, would be exceedingly difficult. The likely result of
trying captured al Qaeda members under criminal justice rules is that many
of them would go free and return to the fight.

These costs aside, the benefits of adopting the law-enforcement model would
be ephemeral at best. There is no doubt that the war on terror in general,
and Guantanamo in particular, have cost the U.S. diplomatically. Al Qaeda
and its supporters have won--at least for the time-being--this propaganda
point. Even some high-level American officials have, according to a recent
report in the New York Times, argued that the base should be closed and the
detainees transferred to the U.S.

But whatever the immediate diplomatic benefit that might be gained by
adopting this suggestion, it is naïve to imagine that closing the Guantanamo
detention facilities, and even agreeing to treat captured jihadists as
ordinary criminal defendants, would end international criticism of U.S.
efforts to defend itself.

After all, many critics' appreciation for the American civilian judicial
system is both new and very much conditional. Long before the war on terror,
Europe already was refusing to send criminal suspects to the U.S. if there
was any chance that the death penalty would be inflicted. So, in order to
obtain the transfer or extradition of terror suspects from these states, the
U.S. would have to agree not only that they would be processed through the
normal criminal system--accepting the inevitable intelligence cost of
presenting all of the evidence against them in open court--it would also
have to agree to eschew the death penalty. And, once that point is won, the
question immediately arises whether lifetime imprisonment is itself
consistent with Europe's evolving human rights norms.

As for leading non-governmental organizations like Amnesty International and
Human Rights Watch, they have long promoted an agenda that requires the
subjection of national justice systems to international institutions such as
the International Criminal Court. (It was, in fact, originally proposed as a
counter-terrorism criminal court.) The claims of bias and lack of
independence such groups have leveled against American military commissions
can equally be flung at American civilian courts. That was done in the case
of the alleged 20th 9/11 hijacker, Zacharias Moussaoui, who was tried in the
Eastern District of Virginia. The critics argue that, although federal
judges serve for life, they are all employees of the federal government and
have taken an oath of allegiance to the U.S. Constitution. The juries that
would ultimately determine jihadists' fates are composed of U.S. citizens,
the very men and women who are the terrorists prime and preferred targets.
Some "human rights" activists will accept nothing less than internationally
supervised tribunals, in which America and its enemies can be equally tried
and punished for their alleged "offenses."

In short, closing the Guantanamo Bay detention facilities will not end U.S.
diplomatic troubles. The U.S. has operated fully in accord with the laws of
war, and although there have been mistakes and abuses, claims that it has
systematically flouted the rules are based in an insupportable view of what
international law actually requires and permits. The U.S. is entitled to be
judged based on international law as it is, not as the critics would like it
to be.

The critics are correct that the fight against jihadism cannot be won by
military means alone. However, the war paradigm is an essential element. The
U.S. may be able to punish some captured jihadists as ordinary criminals,
but only the laws of armed conflict give it the necessary legal means to
reach them before they can reach the American people. For decades, a strong
U.S. international posture was justified back home, based on the premise
that we would rather fight "them" over there, than on the Jersey beaches.
That is as true today as in past conflicts.

Messrs. Rivkin & Casey, who served in the Department of Justice during the
Reagan and George H.W. Bush administrations, are writing a book on war's
evolving legal architecture.