Yes, what should America do with its high-risk detainees?

by Ugh

This is a bit dated, but Jack Goldsmith, whose claim to fame is being less insane than John Yoo and Jay Bybee, and Jane Harman, former Democratic congresswoman and now President of the Woodrow Wilson International Center for Scholars (NOT the one at Princeton, it seems), had an Op-Ed in the WaPo entitled "What should America do with Guantanamo’s high-risk detainees?"  

This is, apparently, a vexing question for the two of them.  They begin with the hard question,

The easiest question is whether to release the 54 who the administration has determined aren't dangerous.  Whoops!  My bad. I guess that is the easy question.  And, indeed, one would think that people that are not dangerous should be...released!  But...

A tougher issue is where to send the remaining non-dangerous detainees. Aha!  Now we're talking.

The administration has already persuaded third-party countries to take 100 or so of these detainees, including several dozen in the past few months.  Wait, I thought there were 54?  So, we have places for them and....we're golden?

Still, finding a place to send the remaining non-dangerous detainees will be hard; options have narrowed.  But... you just said the administration had found a place for the 54/100 or so of them?  So confused...But we have agreed that the non-dangerous people can go to where the administration has found places for them, yes?

The biggest problem is a group of up to 68 higher-risk detainees.    Oh, you've moved on.

The men in this category, the president explained, “received extensive explosives training at al-Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.”  Yes, sadly, such people do not seem to be in short supply, despite our continued efforts to short the supply.  Strange that.  The OMICTTWTKA category is a bit troubling, at least to me.  Perhaps you've answered your own question?  

Guantanamo cannot and should not be closed until there is a concrete plan to prosecute these men... Great!  That works for me.  Oh, you've not finished.

or, if necessary, detain them in a lawful way that ensures they can never inflict grievous harm again.  But, isn't that what we call "convicting them and throwing them in jail"?  So you're with me?

Federal courts have ruled that these detainees can be lawfully held until the end of the relevant conflict, whenever that might be.  So they're POWs then?  Yes? No?  You're not going to say, I'll bet.

But many cannot be criminally prosecuted because of evidence tainted by abusive interrogations, limitations in federal criminal law and other problems of fitting the demanding standards of criminal justice to the messiness of the terrorist battlefield.  You didn't say.  Darn those pesky "limitations of federal criminal law" and the roadblocks they put in place for criminally prosecuting people at the federal level!  Also, isn't the "Oh noes! We tortured them and now they're stuck in legal limbo, whatever can we do?  Fiddlesticks." point kind of embarrassing to make?  Don't answer that.  And, oh, the messiness, yes that does seem insurmountable for most mere mortals, but not if you have scores of lawyers!

Scores of lawyers in two administrations have scoured the case files and case law and (reluctantly) agree.  Sh1t.  So, we have to let them go?

What to do?  Hey that's my question, you're writing the Op-Ed!

Closing Guantanamo must not mean ending detention of these dangerous men, though the two are often confused.  Well it's a confusing sentence, who can blame, uh, those who are doing the confusing who shall not be named in this Op-Ed (if that's even they're real name....)

The legislation needed to bring Guantanamo detainees to the United States could supplement the military rationale for holding non-prosecutable — but very dangerous —  But how do we know if we don't prosecute?  Seriously, I'm asking, how are-- you're going to skip right over that aren't you?

terrorists with a form of administrative detention akin to civil commitment, one that could apply after the end of the relevant hostilities.  I knew it!  But, crucifix- er, administrative detention/civil commitment for you then?  

Such a statute could prescribe the definition of dangerousness that warrants detention, the processes for determining a continued threat to public safety over time and the standards for judicial review.  Well very good.  A definition of dangerousness that has constitutionally sound standards for judicial review that SCOTUS is willing uphold and police to ensure no abuse, that just might work!  Or, maybe not.  So, really, WTF then Jack and Jane?

This approach is, in our view, the least bad option for dealing with detainees. Keeping hardened terrorists incarcerated is essential; keeping them detained at Guantanamo Bay is untenable. The president and Congress must be partners in finding a secure solution.  Ah, I should have seen this coming, let's endorse something monstrous like "administrative detention" (but for terrorists only!) as it must be okay because of...bipartisanship!  

See Jack and Jane be bold and brave.

It's all rather cowardly and dispiriting.  But not surprising.  

Update!  Via Mr. Cleek in the comments, we'll always have Chicago.  But what do those damn Brits know about America anyway?  They're still bitter about us kicking their arses (hah!) in the 18th Century.  

Comments

[Snarki, child of Loki]

Just open the gate at Gitmo, and let the cubans deal with them.

[cleek]

send em to Chicago !

[thompson]

Thanks, Ugh. That was both saddening (the link) and humorous (your commentary).

I think the thing that bothers me the most is this line:

Keeping hardened terrorists incarcerated is essential; keeping them detained at Guantanamo Bay is untenable.

IMO, it's untenable because their detainment has minimal, if any, due process constraints. Moving them to a US prison with minimal, if any, due process constraints doesn't strike me as much any less untenable.

What boggles my mind is how these 'hardened terrorists' are considered utterly unconvictable. If there is one thing our government is good at, it's convicting people.

If Aaron Schwartz can face life+cancer for accessing JSTOR, surely one of these guys logged into facebook in violation of their TOS at some point, right? Or actually committed a violent terrorist act? If there is literally no evidence against them that isn't tainted by torture...doesn't that say something about their detainment?

[sanbikinoraion]

"These people are bad but we can't prove it but unlike when that happens in any other field of criminal activity we can't be expected to let them go."

I would have thought that Islamic State would love to host however many of them there are.

[wj]

Do we really need legislation to bring them to the US for trial and prison? (Those that we actually have a case against, that is.) I thought all we would have to do is repeal the stupid piece of legislation which prohibits doing that.

And, in keeping with what Thompson wrote, if there is literally no (admissible) evidence against them of anything other than having received explosives training, let them go. For those (the majority, I believe) who were captured in Afghanistan, just fly them to one of the US bases and open the gates. If we're in sympathy with the Afghan government at the time, let them know when the gates will be opened.

Could such people turn around and attack us directly? Sure. And so could any other ex-con in the country. Or any of the tens of thousands of other Taliban in Afghanistan. Feel free to blame the torture proponents if it happens.

And as for the rest, take them back where they came from and turn them loose. If the governments there don't want them, they are free to lock them up themselves.

[russell]

many cannot be criminally prosecuted because of evidence tainted by abusive interrogations

The gift that keeps on giving.

The legislation needed to bring Guantanamo detainees to the United States

If I'm not mistaken, the "legislation needed" amounts to undoing the previously passed legislation making it illegal or impractical to bring them here.

Basically, the idea of imprisoning these people in the US makes folks in Congress crap their pants, and we can't prosecute them in non-military courts anyway because we've poisoned so much of the evidence against them via the torture regime.

So, let's make up some bogus new laws and legal categories to try to work around the fact that we've totally FUBAR'ed the situation.

The careful reader will note that that was how we got the doctrine of the "illegal combatant" in the first place, see ex parte Quirin.

9/11, when America was tested and failed.

[hairshirthedonist]

Could such people turn around and attack us directly? Sure. And so could any other ex-con in the country. Or any of the tens of thousands of other Taliban in Afghanistan.

This. I've been asking what's so fncking special about these supermen for years.

(If anything, they're too screwed up in the the head from their treatment at Gitmo to be effective at terrorism or anything else.)

[Countme-In]

Given the detainees presumed conservative social views regarding the Other and their hatred of the U.S. government and the taxes it collects, and Barack Obama, release them, run them for local, State, and Federal political office along with their peers on the Republican ticket.

Surely there is still room to the right of the filth in that Party now.

I'm sure they don't want to pay taxes either.

[Ugh]

Ugh: Can I post something off topic in my own thread?
Ugh: Yes.
Ugh: Thanks.

This was interesting, for me in part because of the players, but more in general for this paragraph:

Without Ms. White, some cases have split the agency’s four remaining commissioners, pitting two Democrats who have endorsed the public uproar over financial wrongdoing against two Republicans who have expressed reservations about levying big corporate fines.

But hey, steal some candy from a convenience store and the law & order GOP would lock you up for months and months. "It wasn't me officer, it was my single member LLC." "Oh! Okay, give back 10% of the candy - and don't do it again!"

[cleek]

steal some candy from a convenience store and the law & order GOP would lock you up for months and months.

if you're lucky.

[Donald Johnson]

A sort of related question--there was a front page story in the NYT today about a court decision that found that the Palestinian Authority should pay the American victims of Palestinian terrorism back during the Second Intifada. There's no doubt that Palestinians committed terrorist acts and some of the victims were Americans. And so the court is holding the nearest thing to a Palestinian government accountable for these actions. Fine. In a geopolitical vacuum anyway.

So why can't the victims of American war crimes (like torture, for instance, but I would also include Palestinians killed by American weapons given to Israelis in some cases)sue the American government for damages in an American court? This isn't just a rhetorical question, though I assume it's clear what I think would be fair. I just want to know what the legal rationalizations are.

[Donald Johnson]

Or rather, what the legal rationalizations are for keeping victims of US foreign policy from suing us into bankruptcy. Not that I personally would want it to go that far, for purely selfish reasons.

[wj]

NV will doubtless weigh in with the real legal reasoning. But I'm betting that it's a combination of cost and "standing".

Granted, cost isn't a *legal* constraint. But it would be challenging to finance a legal fight. And no lawyer is going to take on the US government on a contingency basis, knowing that he would be looking at a jury trial with his clients branded terrorists. I.e. not a winnable situation.

As for standing, I'm thinking that we would see arguments that someone not a US citizen, and not injured on US territory, simply doesn't have standing. Especially if the government argues, as it likely would, that personal injury in war is not something that can be sued over for damages.

I'll be interested to see what the lawyers here say.

[Donald Johnson]

That makes sense, wj. Not that I like the reasons, of course, but that's more or less what I would guess. I hadn't thought of the cost of suing the US government, but you're probably right. You'd need some altruistic lawyers with deep pockets, probably.

[Nigel]

The UK government has paid compensation to several released Guantanamo detainees, reflecting the impossibility of defending their detention in court:
http://www.bbc.co.uk/news/uk-11769509

My impression, FWIW, is that US courts are more instruments of state policy, rather than arbiters of justice, when it comes to dealing with individuals outside of the US.

[BBA]

Sovereign immunity. 28 USC § 2680(k) specifically bars any lawsuit against the US government for its activities in foreign countries.

[Nombrilisme Vide]

28 USC § 2680(a) gives a pretty nice blanket too.

[Donald johnson]

Thanks. But it sounds like the US has therefore exempted itself from any accountability for what it may do to others, but other governments can be held accountable in our courts.

[Nombrilisme Vide]

(This isn't an area where I have a lot of expertise or knowledge - my knowledge of the area is first and foremost from a class I taught when I worked corrections, which frankly probably shouldn't have been taught by a paralegal.)

[sapient]

But it sounds like the US has therefore exempted itself from any accountability for what it may do to others, but other governments can be held accountable in our courts.

The legal doctrine of sovereign immunity is a carry-over from the common law of England. Congress actually, by statute, created exceptions where it allowed itself to be sued (based on contract, certain torts, violations of civil rights). One of the statutes allowing lawsuits against the United States is the Federal Tort Claims Act. The section cited above (28 U.S.C. 2680) creates exceptions to the Congressional act allowing lawsuits against the U.S.

You'd need some altruistic lawyers with deep pockets, probably.

No, there are plenty of lawyers who make their living suing the government, but they only do so when there's a legal basis for it. As unjust as the Guantanamo situation is, there's no legal basis for a lawyer to sue. So altruistic or not, no lawyer will sue when s/he'll be thrown out of court (with sanctions being imposed) for having no legal basis to do so.

The Guantanamo situation is horrible and unjust, but it happened because "we" allowed George W. Bush to be president. Sadly, "we" also continue to elect Congressional representatives who stonewall every attempt to end the Guantanamo nightmare. Nothing will change until we change Congress.

[Donald johnson]

I don't expect any American politician to do the right thing at present, which would be to change an absurd unjust set of laws that allow Americans to sue the PA, but don't allow foreigners to sue the US government in our courts. They could try the some foreign court, I suppose, but the US would just ignore it. There is no easy solution, but people of good will, American or not, could start by pointing out the hypocrisy. Who knows? Maybe enough Americans would eventually change their minds about our government's right to commit crimes with impunity and then politicians might do the right thing.

[Donald Johnson]

Put another way, I don't think electoral politics is the answer to every moral question. It can be important who wins and who loses, but it's not the only thing that matters. Getting Americans to shed American exceptionalism seems like a worthy goal to me, if it is interpreted as a doctrine which says Americans can sue foreign governments in our courts, but foreigners can't sue the American government in our courts. Sure, they could try some other court and that might matter, if we weren't a superpower. It would be great if everyone picked up the NYT today (yesterday as I write this), saw the story about the PA losing a case in an American court, and immediately thought "What a stupid hypocritical country we are on some issues". I'd like this to be the default position of everyone when they see a story like that. I don't know what would happen next, but it would be nice to find out.

[Nigel]

As unjust as the Guantanamo situation is, there's no legal basis for a lawyer to sue

That is precisely my point.

[sanbikinoraion]

> because "we" allowed George W. Bush to be president.

Debatable, the first time around, at least.

[Slartibartfast]

Sadly, "we" also continue to elect Congressional representatives who stonewall every attempt to end the Guantanamo nightmare.

Translation: the Guantanamo detainees will not be released because most Americans don't want them released, or don't particularly care.

This is not an endorsement of that position, just noting that is more or less how politics work.

[Marty]

What a stupid hypocritical country we live in, the PA is just another government not a terrorist organization with the stated goal of wiping another country off the map. Not just wipe out the government, the country and the citizens. They were in power right up until they decided to talk peace, then they were kicked out because the Palestinian people don't want peace. Yeah that's just the same as the US government and us.

[Nombrilisme Vide]

At the risk of igniting a firestorm, "PA" could be replaced with "Israel" the the above paragraph with no more inaccuracy being introduced than what is already present.

[Snarki, child of Loki]

Shorter "28 USC § 2680(a)": accountability is for the powerless.

[Ugh]

Translation: the Guantanamo detainees will not be released because most Americans don't want them released, or don't particularly care.

I agree in part with this - it is a big hurdle for politicians to get over seeing as how they are supposed to represent the people. OTOH, this requires that Americans be in possession of accurate and complete information about this (and other) issues, which the executive branch has long denied them on this subject to this day.

That said, AFAICT, there is nothing keeping the Obama administration from releasing the prisoners at Gitmo other than political consequences supported by a fear that many of them will "return to the battlefield." That fear is not unfounded, of course.

[Donald Johnson]

The PA doesn't have the stated goal of wiping Israel off the map. You might be thinking of Hamas. Or just randomly spouting. The PLO, which isn't quite the same as the PA, recognized Israel back in the late 80's. Try again. Or better yet, don't.

[Marty]

I believe I recognized that the PLO moved toward peace, after having the stated goal, then they were thrown and Hamas was duly elected. Because the Palestinian peoples goal is to wipe Israel off the map. Try again, or don't create false equivalencies' would be better. PA was the political arm of a terrorist organization.

[Slartibartfast]

"the PLO affirms that those articles of the Palestinian Covenant which deny Israel's right to exist, and the provisions of the Covenant which are inconsistent with the commitments of this letter are now inoperative and no longer valid"

Name that tune.

[wj]

Hamas was not elected because the PLO moved towards making peace with Israel and the Palestinians didn't want that. It was elected because the PLO was doing a terrible job of providing government services, while Hamas was doing a better job as a non-government organization. Not to mention the level of corruption that the Palestinians were seeing from the PLO.

As with all elections everywhere, it is a serious mistake to assume that just because someone was elected, the voters actually agree with ALL of their positions on every issue.

[Slartibartfast]

it is a serious mistake to assume that just because someone was elected, the voters actually agree with ALL of their positions on every issue

Oh, no. That would mean that everyone who voted for Romney didn't secretly want binders full of women?

[Donald Johnson]

So Marty, you aren't accusing the PA of wishing genocide, just the Palestinian electorate. And I'm sure that people like yourself would be regular Gandhis if America were under occupation. wj already explained the background on why Hamas won. My point remains the same--it's absurd that the American justice system allows Americans to sue foreign governments for damages, but doesn't allow the reverse. And your attitude helps explain why--many Americans can't be bothered to learn the details of a conflict in which we are involved (either directly or indirectly) and are happy to make sweeping judgments about the unworthiness of an entire people based on, well, almost no knowledge of the situation. No matter what the roots of the law may be (I'll take sapient's word for that), if English common law somehow allowed foreigners to sue the US government in our courts, but did not allow Americans to sue foreign governments, I think we'd change that pretty quickly.

I think elections will matter more on these issues if fewer voters believed in the toxic form of American exceptionalism. (The non-toxic form would be the normal sort of love of country that doesn't involve jingoism and an inability to empathize with people overseas who might have legitimate grievances against us.) So that's part of my long-running disagreement with sapient. Elections matter, but so do attitudes.

[Marty]

Your point is absurd, thanks slart fro the quote on the PLO denouncing the covenants clauses on Israels right to exist. The point being "no longer" valid.

[Snarki, child of Loki]

IANAL, but for the case in question, I don't think it was just a matter of "foreign government", otherwise people would be suing Israel for running over US citizens with bulldozers, or dropping commandos on aid ships on the high seas and shooting up US citizens.

The necessary ingredient is (I think) designation as a state supporter of terrorism. So go ahead and sue Cuba all you want, I'm sure they did something terrorist back in the 1960's. But you can forget about suing France for attacking Greenpeace ships.

[Marty]

the rest

Your point is absurd, you are comparing the actions of a relentless terrorist organization whose goal is to blow up civilians to create fear and, uh, terror, both through suicide bombers and random bombings of civilians from inside Palestine to collateral damage of military operations aimed at specific military targets. American exceptionalism isn't why those two things aren't the same.

I hope no American ever feels like you describe. And no one hates war worse than I do.

[Marty]

Last

We shall never stop until we can go back home and Israel is destroyed… The goal of our struggle is the end of Israel, and there can be no compromises or mediations… the goal of this violence is the elimination of Zionism from Palestine in all its political, economic and military aspects… We don’t want peace, we want victory. Peace for us means Israel’s destruction and nothing else. Quoted in the Washington Post (29 March 1970).

Yassar Arafat co-founder and Chairman of the Palestine Liberation Organization (PLO) (1969–2004),

[wj]

Marty, great quote . . . from 1970. Because, as we know, people (and organizations) never change. Sinners never repent. There is no redemption, ever.

[Slartibartfast]

I am actually not sure what you're on about, Marty. Perhaps it's time for you to stop and summarize your points, as well as what they're in response to.

[Marty]

It would be great if everyone picked up the NYT today (yesterday as I write this), saw the story about the PA losing a case in an American court, and immediately thought "What a stupid hypocritical country we are on some issues". I'd like this to be the default position of everyone when they see a story like that.

Slart,

I hope that no one who reads that story in the NYT and reacts by creating an equivalence between anything that the PLO/PA has done in terms of terrorism and anything we've done, thus feeling that we are somehow hypocritical based on that.

[Ugh]

Let the Palestinians drink wine.

[sapient]

It would be great if everyone picked up the NYT today (yesterday as I write this), saw the story about the PA losing a case in an American court, and immediately thought "What a stupid hypocritical country we are on some issues".

You might want to read the New York Times discussion about this issue, explaining how complicated and difficult trying to enforce this judgment will be, and discussing the problems with using the court system to solve issues arising from international tensions.

The problem with the anti-terrorism law has little to do with hypocrisy, and much more to do with enforceability and public policy.

[Barry]

"Jack Goldsmith, whose claim to fame is being less insane than John Yoo and Jay Bybee"

That's a beautiful phrase.

[Barry]

BTW, my theory on why the PLO got booted was that they basically signed a deal with Israel, which then d*cked the Palestinians over. This had the obvious effect of destroying the PLO's popular legitimacy.

[wj]

Barry, you might want to read this
http://www.thejerusalemfund.org/ht/a/GetDocumentAction/i/26807
on the rise of Hamas, and the roots of its electoral victory.

Among the research findings it cites:
At stake for those who support Fatah is the attainment of independence and sovereignty in a state in the West Bank and Gaza; clean and good governance can be achieved later on...For those who support Hamas, on the other hand, the question of establishing a state, though important, is not sufficient. The nature of the state and the pre-state entity, the PA, matters...Hamas voters focus on clean governance; they want a pre-state authority and a post-independence state free of corruption.

Which is to say, Hamas won on what kind of government it would provide (effictient and not corrupt), not on its views on relations with Israel.

[Donald johnson]

I half regret sending us off on this I-P tangent--the NYT story just rankled me as yet another example of American exceptionalism. It could have been something else. But, yes, Marty, I would morally equate some of what the US has done to the worst actions of the Palestinians and I think the idea of Americans lecturing Palestinians on morality,given what we have helped do to them, is utterly outrageous and entirely expected.

But there are any number of other examples of US hypocrisy.

Sapient, I'll read your link later.

[sapient]

Well, back to Guantanamo then:

Ugh said: That said, AFAICT, there is nothing keeping the Obama administration from releasing the prisoners at Gitmo other than political consequences supported by a fear that many of them will "return to the battlefield." That fear is not unfounded, of course.

Ugh, this is inaccurate. Obama is not allowed to bring Guantanamo prisoners to the United States. He's negotiated with other countries to take them, a few at a time, but even that option is subject to the Secretary of Defense's assessment that the transfer wouldn't harm the interests of the United States. Secretary Hagel wouldn't sign off on enough prisoners, and he got the boot. It's a bit too early to say what Ashton Carter will do.

What do you suggest in terms of specifics: where will they (in each category) go? And what will be the consequences - not just political, but in real blood?

I'm fine with landing them all somewhere - Syria, Iraq, whatever, and let the chips fall. If they're dangerous, maybe they'll be bombed. If not, they'll be in the same boat as a lot of other people. My guess is that the reality is a lot more complicated than what I'm "fine" with, or they'd already have been sent away.

And Nigel, if they could all be sent to the UK, problem solved. George Bush had the help of Tony Blair every step of the way. If your government is so much more evolved, please take them all in, and have at it.

[Marty]

Along with my lack of outrage at our hypocrisy, I am befuddled by the idea that these guys could be released because, well, there are other guys out there just as bad so why are we so worried about these?

By that logic there is simply no reason to have a prison of any kind. No matter who is in there, there is someone just as bad on the outside.

Si, what makes these guys so special is they're the ones we caught. So they can't kill anyone else. Lets keep it that way.

[sapient]

Si, what makes these guys so special is they're the ones we caught. So they can't kill anyone else. Lets keep it that way.

POW's are sent home after the war is over. People accused of crimes are given trials. We need to do something besides keep people in prison forever without a trial. If the reason we can't try them is because we tortured them, we need to justify keeping them with a legitimate claim that they are POWs in an ongoing war, or release them. Bush screwed us royally by subverting the law. We are now in the position of having to suck it up.

[bobbyp]

Well, Marty. By your logic, we should just lock everybody up because you never know for certain, right?

As for lawsuits, I guess the relatives of those killed in the 1976 bombing of zionist terrorism to sue the Israeli government? After all, many of those perpetrators became members of the new found government and were essentially acting on its behalf.

And what of today as the Israeli government continues to kill Palestinians and steal even more of their land?

Befuddle me that, batman.

[bobbyp]

well, mengled that one badly I see. Damn, no preview.

[bobbyp]

what Sapient said, too.

[navarro]

@marty--

you're right, a comparison of the u.s. to the plo/pa is inherently a false equivalency. the plo/pa never ran a successful genocide and ethnic cleansing regime the way the u.s. did against the native americans and while groups loosely affiliated with hamas with homemade rockets occasionally manage to kill a civilian or two drones under the control of the u.s. military and/or the cia have managed to kill hundreds of civilians including dozens of children. compared to us the plo/pa are pikers, i can see why you might feel we were being slighted by the comparison.

[Tony P.]

Marty's faith in the infallibility of The Guvmint, as manifest in its having "caught" ONLY bad guys, is truly touching. I for one will remember it, next time Marty tells us how incompetent and malicious The Guvmint is in other respects.

--TP

[Nigel]

And Nigel, if they could all be sent to the UK, problem solved.

Really ?

http://www.andyworthington.co.uk/2015/02/13/us-ambassador-snubs-60-celebrities-and-mps-calling-for-release-from-guantanamo-of-shaker-aamer/

[Nombrilisme Vide]

What a stupid hypocritical country we live in, the PA is just another government not a terrorist organization with the stated goal of wiping another country off the map. Not just wipe out the government, the country and the citizens. They were in power right up until they decided to talk peace, then they were kicked out because the Palestinian people don't want peace. Yeah that's just the same as the US government and us.

I'm very curious if your righteous indignation at terrorist organizations who target civilians and governmental authorities who support them, and glowing approval of them being financially being held accountable by their victims' survivors, extends to e.g., Nicuraguan victims of American-sponsored terrorism in the 80s. To pull one closer-to-home example (among many) out of the memory hole. Because the US is not nearly as exceptional nor distinct from the PA in this regard as you've so fiercely imputed.

[thompson]

We need to do something besides keep people in prison forever without a trial.

That this even needs to be said is incredibly saddening.

[sapient]

Really ?

David Cameron didn't "convince" Chuck Hagel.

[Countme-In]

"That this even needs to be said is incredibly saddening."

While medical science might solve the depravities with which ISIL dispatches its victims ....

http://www.cnet.com/news/human-head-transplant-just-two-years-away-surgeon-claims/#ftag=YHF65cbda0

.... what is to be done with those of us who have lost our minds?

[Ugh]

Pretty sure they did monkey head transplants in the 50s or 60s. They didn't live very long but the transplant was done well enough that the monkey head on the new body could open its eyes and look around.

Ah the 50s, if only we could return to that wonderful paradise.

[hairshirthedonist]

The logic isn't "There are other bad guys out there, so there's no point in keeping bad guys imprisoned." The logic is "The danger these guys represent isn't so compelling or unique that it justifies throwing the law, our principles and our morality out the window."

You might not share that logic, but don't misunderstand what it is.

I would love to know which of these guys did what and be able to demonstrate it to the world such that we could handle them appropriately and legally, be it letting them go or keeping them in prison for the rest of their lives, or whatever in between according to the relevant circumstances.

That possibility doesn't appear to exist any longer.

[Slartibartfast]

I also agree with sapient, for once.

Our basic problem here is that warfare has more or less moved beyond what it had been for some centuries, where soldiers fighting it belonged to and were fighting on behalf of specific nations, and wore uniforms to identify them as such. Now we have people who don't wear any uniform of any kind, who belong to a faction instead of a nation.

We haven't declared war on anyone, ergo we are not at war. Having prisoners of war without a war just doesn't compute. If Congress were to for instance declare war on ISIL, ISIS, etc then it could capture combatants, regardless of nationality, who were fighting on behalf of those groups, and imprison them until the war was over.

Since there's no war, it cannot ever be over. So we have people imprisoned indefinitely, with barely any review process to speak of, who may or may not be guilty of association with some group that we are fighting without a war being in the offing.

Marty, if you don't see some amount of problem with this, then you're simply being obstinate. If you imagine that everyone we've ever detained is guilty as charged, then you haven't bothered reading about them.

What's the answer? I don't know. But the answer is not to hang on to people because you don't know what else to do with them.

EOR

[Slartibartfast]

One not-very-pleasant-to-consider solution to this little problem is to kill all belligerents, rather than capture them.

Or, alternatively, turn them over to the people they are murdering for justice. But that solution tends to foster other problems.

[Slartibartfast]

Addendum: I am in fact aware that not all of the Gitmo prisoners were captured in battle. It's one of the manifold problems with having places to stash captives who have no POW status, in the first place.

[Slartibartfast]

So, my solution:

Let all of these guys go back to where they want to go, provided those places will have them back. If they get themselves into trouble, then we'll know to just head-shoot them rather than capture them. If they don't, end of concern.

The "provided those places will have them back" bit might be a stumbling point. We may have to covertly remand them, just to get them out of our sight.

Surely that wouldn't be a problem too hard for the CIA to solve.

[wj]

Slarti, perhaps we actually owe ISIS a vote of gratitude. Unlike al Qaeda, they actually are creating a nation-state. It has territory, something that is arguably a government, etc. -- its soldiers don't have uniforms, but that isn't really a requirement. So now there is something to declare war on.

Granted, its government isn't recognized by most existing countries. But then, formal recognition isn't really a requirement. The government of China wasn't recognized by the US for decades. Which didn't mean we didn't get that it was a nation . . . just one that we didn't like.

[wj]

Definitely don't insist on agreement from the local government to send them back where they came from. Notify those government that they are coming, sure, so they can arrest them on arrival if they want -- but then they are the local's problem. But if we grabbed them from somewhere, put them back where we found them.

[Slartibartfast]

perhaps we actually owe ISIS a vote of gratitude

Bingo. I think they will find that they screwed themselves, there.

Notify those government that they are coming, sure

Think that last bit through, wj, and you'll find that maybe my covert-remand proposal isn't so crazy after all. You can't even book travel to some places without a visa, which they won't grant if they don't want to take delivery.

[wj]

You can't even book travel to some places without a visa, which they won't grant if they don't want to take delivery.

But does that apply to the places these guys are actually from? Afghanistan, for example? And of those, in how many do we have bases -- from which we can just open the door and send them out?

But for places it really is a problem: Military plane making overflight; auto-opening parachute. It isn't elegant, and the recipient countries might not be thrilled (to put it mildly). But it should work.

[russell]

FWIW, just chiming in to say I'm in agreement with sapient's comments throughout this thread.

And, slarti's suggestion for how to handle the prisoners makes as much sense to me as any other that I've heard.

IMO the closest analogy, historically, to the present-day problem of Islamic-inspired political terrorism is the wave of anarchist violence around the turn of the 20th C.

Bombings, assassinations both attempted and successful, including one of a sitting President. Publication of subversive material calling for the otherthrow of the US (and other) governments, including instructions on how build and deploy bombs.

Published from Vermont, BTW. No YouTube or other global social media, then.

All inspired and motivated by a global movement that was critical of Western capitalist culture, and that sought to bring in a brave new world through violent political action. Stateless actors, mostly.

In that case, we prosecuted people who had actually committed crimes, and deported people who we thought were overly sympathetic to folks who had actually committed crimes.

And, the deportation was seen as being an overly harsh action, and the procedures and methods used to identify and prosecute or deport the folks in question were subsequently seen and eschewed as unconstitutional overreach on the part of the police and intelligence agencies.

They were also where J Edgar cut his teeth.

In about a generation, it blew over.

Different times, now, apparently. Or, we're different people then we were then.

[thompson]

I think one of the major problems with deporting people to places that don't want them back, or even the places that do, is the strong possibility that they will be tortured and/or executed.

I'm certainly not going to make the argument that the US is roses in this category, but I think there is some moral culpability if we airdrop someone into Saudi Arabia while being pretty sure the government would black site them if they were ever caught.

I'm probably fairly radical, but I don't have a huge problem with giving those we can't charge political asylum in the states and a cash settlement provided they agree to some form of monitored release. Because, bluntly, they became our responsibility when we scooped them up and refused to let them go for a decade and change.

It's politically unworkable, of course.

[wj]

And that's the problem. The solutions that seem most ethical at this point are politically impossible. In short, there are no good solutions.

As an alternative to just dumping the prisoners back where they came from, we could perhaps give them the option of them figuring out a place that would accept them and that they would be willing to go. We might not accept their proposal, but it would at least mean that it wasn't just us outsourcing executions.

Although I suppose you could make a case that doing anything except executing them would be politically unworkable. Without trial, necessarily, since if we had admissible evidence we would be doing trials already. Which probably says something about our current politics.

[Marty]

Slart, I'm not being obstinate, I'm sure some of these folks aren't guilty. I'm happy to use the "let them go with a financial settlement" solution. There may be, though I doubt it, a few we don't know are guilty or not, so send them home empty handed, the rest ( the 54?) who we know are just guilty should stay where they are. The consequence to my moral well being is not very high there.

Of course, the important thing is to no longer capture and torture bad guys so we can't charge them.

[wj]

Have to agree totally with Marty's last pararaph.

But the problem with just having them "stay where they are" is this. The treaty under which we lease Gitmo is for use only as a naval station. Which, clearly, a prison is not. And eventually relations with Cuba are going to return to something like normal. At which point, we are going to be expected to actually conform to the terms of the lease.

At which point, where do you put the prisoners? And, having decided that, why not put them there now?

Note that this is a compeltely separate discussion from the question of whether we can legitimately detain them at all, absent some kind of legal proceeding.

[Marty]

wj, I suspect our new relationship with Cuba will not fail over having a prison on our Naval Station. I bet we can negotiate to keep the ones already there.

[wj]

Perhaps. But what would we have to give up for the sake of getting to keep a couple dozen detainees there? What price hysterical paranoia?

[Nombrilisme Vide]

There may be, though I doubt it, a few we don't know are guilty or not, so send them home empty handed, the rest ( the 54?) who we know are just guilty should stay where they are.

Guilty of what? Association? I suspect we have hard-and-fast proof (outside of tainted confessions/implications) on far, far fewer than all of those we have left.

Also, this has a decidedly unpleasant precedent attached to it: that was wrong and we shouldn't have done it? Okay, fine, we'll tell you (ourselves) not to do it again, but for the rest of your (our) victims keep doing what you're (we're) doing until your (our) victims die of old age.

(Aside: generally agree with sapient in this thread, and second thompson's entirely-untenable solution as the only outcome I can conceive that's even resembling just.)

[Marty]

NV, I'm pretty sure my summary didn't include keeping "all we have left". I am not so convinced that we don't have a significant amount of prisoners that we know exactly what their roles were in various terrorist activities. There is no precedent, no is saying this is in any way the proper action or solution for future activities.

And, finally, wj, its not hysterical paranoia to lock up known criminals for life. See my earlier comments. I'm willing to bet the "what we have to give up" is nothing.

[Slartibartfast]

If their own country of origin wants to kill them, it could be that they're not all that squeaky-clean. If we cannot find anyone who will take them, ditto.

In any case, I will amend my proposal further:

Separate the detainees into two groups: those who have a place they want to live and that will take them, and everyone else.

For those who can be sent back home, do that, quietly and without announcement. For those who have no place to go: pick a country with little in the way of technology, particularly as used by law enforcement. Build, at our own expense, false identification papers. Provide the person in question with a certain amount of local currency, sufficient to keep the person alive and warm (but little more) for one year. Then covertly insert the person. If necessary, send in someone in advance to get them set up in their new environs. Then walk away.

Probably not easy, or cheap. But at some point we can't be responsible for their well-being. If it costs us some effort to be shed of them, well, what other choice do we have?

The other, simpler choice is to WPP them. But you could never let anyone know that had been done.

[wj]

its not hysterical paranoia to lock up known criminals for life.

Marty, I would say "proven" criminals, but I take your point.

However, what I was referring to was the hysterical refusal to allow these criminals to be locked up in the US. And I think it has to be hysteria and paranoia to claim that they are somehow vastly more dangerous than the guys already locked up in Leavenworth for life.

[Marty]

wj, well, it might be a touch of paranoia but it does create a default target of terrorist attack that simply isn't crested by most prisoners in the US.

[russell]

But at some point we can't be responsible for their well-being.

Actually, I think that, having captured them, we're now responsible for their well-being.

Even if they're not good guys.

If it costs us some effort to be shed of them, well, what other choice do we have?

None of the available options are without cost or effort.

What makes sense, to me, at a simple intuitive level, is to put them in jail. Just like we've done with all of the other people who have committed acts of terror, been caught, and found guilty.

The problem is that we've FUBAR'd the processes by which we might find them guilty.

So, we're stuck.

I guess we could make a one-time, special-case, never-to-be-repeated exception and just shoot them in the head and throw their bodies to the sharks.

That just doesn't sound like a good idea, for a lot of reasons.

If Congress would get the hell out of the way, we could probably find a way to put most of them in jail and then close Guantanamo. Congress won't get out of the way.

[wj]

Is a maximum security prison which happens to include some terrorists really a juicier target for a terrorist than any of the thousands of others we've got already? Somehow, I doubt it.

Not only is it a lot harder to stage a prison break than to just blow up a lot of people (or even some highly visible infrastructure). But if you fail and end up blowing up a lot of prisoners, does that really terrorize as much as blowing up a crowd in Times Square or on the Mall or something?

[novakant]

http://www.reprieve.org.uk/press/cleared-londoner-shaker-aamer-marks-13-years-in-guantanamo-without-charge-or-trial/

[bobbyp]

....it might be a touch of paranoia but it does create a default target of terrorist attack that simply isn't crested by most prisoners in the US.

paranoia runs deep.

[bobbyp]

I was going to post a solution remarkably similar to Slarti's. Here's my twist:

Give each and every one of them new identity papers/passports; a suitcase with a million dollars in cold hard cash; and an airplane ticket to a destination of their choice.

Much cheaper and less damaging than the slow unwinding of a deep national embarrassment, an international black eye, an inhumane humiliation, a travesty of anything resembling justice, and quite frankly, a crime.

Maybe there should be a lawsuit.

To even conceive that it is acceptable to just let the prisoners all die of old age is an image right out of Kafka with a little Beckett thrown in for good measure.

[russell]

we already hold notable terrorists, including terrorists involved in 9/11, in US prisons.

for, at this point, decades.

to my knowledge, no US prison has been the target of a terrorist attack.

I think paranoia is the right way to describe it, and I think we have suffered enough over the last almost 15 years from public policy based in unreasonable, unreasonable fear.

enough, already. time to get reality based.

[Slartibartfast]

Actually, I think that, having captured them, we're now responsible for their well-being.

The objective, I say, is that at some point we should be getting out of that game.

Not that this is similar, but at some point your kids have to be out of the house, and responsible for themselves.

[novakant]

The problem isn't Guantanamo itself, though it's certainly a special case of cruel idiocy, the problem is abolition of habeas corpus / indefinite detention without trial. It saddens me to see how many seem to view Guantanamo as some sort PR desaster that needs to be fixed, but have no problem with the underlying perversion of the law.

[Nigel]

I'm afraid I have to agree with novakant here.
You're perverting fundamental legal principles for reasons of political convenience, rather than as a result of any existential threat.

Moreover, the theorising of possible solutions is all very well, but when you continue to detain individuals like the one described in his link -
Mr Aamer, a father of four from London, has been cleared for release under both the Bush and Obama administrations, in a process which requires six government agencies to confirm that he poses no threat. However, he remains imprisoned in Guantanamo, despite repeated requests by the UK Government that he be returned to his family in South London.
Mr Aamer’s plight was most recently raised by David Cameron during talks at the White House in January, leading a spokesperson for President Obama to say the US would ‘prioritise’ his case. However, concerns about a lack of progress have been raised after Defence Secretary Chuck Hagel – whose signature acts as the final authorisation to release prisoners from Guantanamo – reportedly said that Mr Aamer’s file was not ‘on his desk’...
- it really doesn't mean very much.

(And for the avoidance of doubt, I'm not claiming, as sapient seems to suggest upthread, any particular virtue on behalf of the UK, just pointing out a case where a country has said repeatedly they will take a detainee off your hands, to no avail.)

[Slartibartfast]

It saddens me to see how many seem to view Guantanamo as some sort PR desaster that needs to be fixed, but have no problem with the underlying perversion of the law.

You seem to be supposing ignorance where no such ignorance exists, novakant. I think we're mostly up to speed on the larger legal niceties, here.

[Ugh]

Defence Secretary Chuck Hagel – whose signature acts as the final authorisation to release prisoners from Guantanamo – reportedly said that Mr Aamer’s file was not ‘on his desk’...

Kafka, is that you?

[hairshirthedonist]

...in a process which requires six government agencies to confirm that he poses no threat.

Sing it with me:

...and the home

of the

braaaaaave.

[Marty]

Nigel, I haven't seen anyone put an entry on this thread that doesn't think the case you have now referenced twice shouldn't be handled by letting the guy go home. I think most people agree he should be compensated. He is not the hard problem.

[hairshirthedonist]

He appears to be a hard problem for our government, even if he's not for us (i.e. the people commenting here, as opposed to the national "us").

[Slartibartfast]

Yeah, I think there's a crucial difference between "we think this guy should go home" and actually letting him go home.

Getting to step 1 is a plus, but step 2 is critical.

[Slartibartfast]

On nth thought: given how slow our system is to release prisoners who are citizens and wrongfully incarcerated according to some notion of legal process, I don't have much in the way of expectation that we'll see much happen, here.

[russell]

The objective, I say, is that at some point we should be getting out of that game.

I think I understand the point you're making here, and it's reasonable.

Most likely, we should continue to hold some of the people in question, probably forever. Or, just execute them. Because they've been involved in acts of mass murder.

As long as we hold those folks, we're responsible for their well being.

The folks who have been cleared for release, or who we can never prosecute in good faith for any of the reasons discussed here, we should, somehow, release.

At that point, their well being is their own affair.

In any case, as long as we hold them, their well being is our problem.

It saddens me to see how many seem to view Guantanamo as some sort PR desaster that needs to be fixed, but have no problem with the underlying perversion of the law.

Actually, I think what makes Guantanamo a difficult problem is our (the US's) concern for not perverting the law.

The "underlying perversion", as it were, is a horse that left the barn long ago. The problem is what to do now.

We could simply continue to hold all prisoners now in Guantanamo until they all die. Or, we could just execute them. We could, for that matter, covertly drop them off in your country and in fact in your very own neighborhood.

The problem (or, among the problems) with all of those solutions is that they fail to respect the rule of law.

One of the biggest problems with releasing folks who have been cleared for release is finding someplace that will have them. Or, a place that will not immediately greet their return with a bullet.

So, not just a concern for the rule of law, but a concern, oddly enough, for the safety of the folks involved.

Plus, some of the folks involved will almost certainly respond to their new-found freedom by killing somebody else.

Also not desirable.

We f****ed up. Now we're trying to figure out how to fix it, or at least not continue f****ing it up quite so badly.

PR is not, remotely, the whole of it.