But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who’ve 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. These are people who, in effect, remain at war with the United States.Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again.
This was followed by a long list of caveats about “fair procedures,” “the rule of law,” and “checks and balances.” While applauding the caveats, Hilzoy nonetheless retorts:
No. Wrong answer
If we don’t have enough evidence to charge someone with a crime, we don’t have enough evidence to hold them. Period.
The power to detain people without filing criminal charges against them is a dictatorial power. It is inherently arbitrary. What is it that they are supposed to have done? If it is not a crime, why on earth not make it one? If it is a crime, and we have evidence that this person committed it, but that evidence was extracted under torture, then perhaps we need to remind ourselves of the fact that torture is unreliable. If we just don’t have enough evidence, that’s a problem, but it’s also a problem with detaining them in the first place. [all emphases original]
Were we talking about American citizens or even aliens captured on American soil, we’d be in agreement. But we’re not. These are people captured on the fields of battle of Afghanistan and Iraq.
Obama is quite right here: “Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again.” It has long been established in international law that enemies captured on the field of battle are subject to detention through cessation of hostilities.
To be sure, the present conflict introduces a new murkiness. We are not at war with a nation-state, so there is no one with whom to negotiate a definitive surrender or peace treaty. Further, most of the combatants in detention are not privileged belligerents under the Geneva Conventions and other laws of war in that they wore no distinguishing uniforms or insignia, fought for no state, and were not part of a traditional resistance movement. Many if not most are war criminals who hid amongst noncombatant civilians and/or used the cover of mosques, hospitals, and other protected sanctuaries as shields.
The problem with Guantanimo is not that we’re holding enemy combatants indefinitely but rather that we’ve flouted some of the rules of the Geneva Conventions, most notably in not establishing some minimal due process to allow people to present evidence that they’re not who we claim they are. Additionally, we used “enhanced interrogation techniques” on a handful of captives that were quite probably torture and quite certainly a violation of the laws of war. Obama, to his credit, has renounced all of these practices.
I don’t fear for America because of the policies Obama laid out today, because I agree with Jack Goldsmith that most of these policies are largely similar in their substance to where the Bush administration ended up, often as a result of shifts in its approach during the second term based on new facts that emerged and new perspectives that were gained. This is the irony of Cheney’s current position: Many of the policies he is arguing for now were in recent years rolled back by President Bush himself, or overturned by the Supreme Court. Closing Guantanamo is an exception, but it was Bush’s stated goal to do so, and people like Secretary Rice and John Bellinger and Matt Waxman worked tirelessly to do it. Closing it now, though difficult, is both right and necessary. So in all these ways, Cheney’s argument is with Bush as much as it is with Obama.
Quite right. For all the talk of Cheney as the power behind the throne, he was increasingly an outlier in the administration whose counsel was taken but largely not followed.
Update (Alex Knapp): I am more inclined to agree with Kevin Drum than with Hilary Bok on this issue:
I appreciate the outrage, but this is a genuinely knotty problem. It was knotty under Bush and it remains knotty under Obama. For various reasons, some defensible and some not, Obama is right: there are almost certainly a small number of Guantanamo detainees who are (a) unquestionably terrorists and unquestionably still dedicated to fighting the United States, but (b) impossible to convict in any kind of normal proceeding.
At the same time, they aren’t American citizens. They were captured on a foreign battlefield, not U.S. soil. They are, essentially if not legally, prisoners of war in a war with no end. So what do we do?
One thing that I think we should not do is let the government say “trust us” on this. If there is evidence against particular detainees, then provide it. Then we can debate the legal channels. If the law needs to be changed, Obama can go to Congress. If it’s possible to extradite some of them because they have outstanding warrants in other nations, let’s look into that. I agree that this is a hard problem, and I also agree that the simple release of some terrorists puts Americans in danger, and that risk needs to be appreciated.
That said, there needs to be some kind of open, transparent process through which claims against such detainees can be evaluated and pains can be made to ensure that detainees that their detention continued are actually dangerous. We shouldn’t just take the President’s word on it. Not any President.
Update (James Joyner): I was about to append an update linking to Kevin’s post on this but noticed Alex already had. I agree entirely with both of them on this matter.