Captain Ed says:
I actually prefer the method that Justice Stevens explicitly left open to the Bush administration in his opinion: leave them detained until hostilities cease in the war on terror. Radical Islam does not leave many deterrents to its lunatic pawns. Death in combat or a summary execution suits them fine. Public trials give them the opportunity to exploit our civil justice system as platforms for their screeds, as Zacarias Moussaoui showed. However, the perpetual and anonymous detention offered by Stevens does give the terrorists the one situation they find most repellent — and that could persuade at least a few of them that taking on the US holds nothing but a miserable stretch of decades in an iron cage, with no public outlet for their hatred.
Failing that, the military tribunals clearly give the US the most efficient system of handling these detainees. Terrorists captured on the battlefield or in conspiracies against us abroad do not have any rights to access our civil system, nor to invoke the normal issues of Miranda rights and revelations of intel techniques. Congress is making the right decision in explicitly filling the gap that the Supreme Court left in its decision.
Rather than dismiss Cpt. Ed’s claims, I’ll take them seriously. He’s right that a hardcore jihadist is not going to be deterred from attacking the United States by the prospect of death, nor be overly daunted by the prospect of having a public trial. Gitmo, as it currently operates, does provide some minimal level of deterrence. Even a fearless suicidal terrorist cannot relish the possibility of being held indefinitely without charges, tortured, and sexually and religiously humiliated. And that hold’s true no matter how good the chicken and rice pilaf. But Captain Ed misses an essential point. As I pointed out in an earlier post:
One hundred and eighty people have been outright released from Guantanamo Bay. That is 24% of the people that have been detained there. Nearly one in four of the detainees were not considered dangerous enough to warrant their continued imprisonment.
One hundred and eighty people were subjected to the hardships of Guantanamo but were later deemed innocent (or at least, not overly dangerous). Setting aside the plain fact that that represents 180 gross miscarriages of justice, he need to ask if these victims’ treatment was necessary collateral damage? And, even if we grant that it is inevitable that some of the innocent will be swept up along with the guilty, we need to consider that a 76% success rate is very poor. In debating Guantanamo we can never forget that many of the people detained there are, or were, not guilty of plotting violent acts against the United States. Captain Ed simply ignores this fact.
Terrorists captured on the battlefield or in conspiracies against us abroad do not have any rights to access our civil system, nor to invoke the normal issues of Miranda rights and revelations of intel techniques.
Why would Ed say that? Because he is begging the question. He assumes that all the prisoners in Gitmo were terrorists or engaged in conspiracies against us. In fact, we’ve already admitted that a quarter of them were not. The question is, how can we sort out the good guys from the bad guys without creating a system that makes it difficult to deal with the bad guys? Ed just assumes the guilt of everyone, which sort of obviates the need for a trial, or for any of the rights accorded to human beings that face trial.
What Ed needs to recognize is that the Bush administration has created a sort of worst of all worlds situation. Once they engaged in ‘intel techniques’ that violate the Uniform Code of Military Justice and the Geneva Conventions, they lost the ability to ever bring bad guys to criminal or courts martial. They created a situation where the only way to deal with them was through some extra-legal military commissions. And, they didn’t have the authority to override the Geneva Conventions and UCMJ. Congress is now left in a quandary. They do not want to leave the prisoners in Gitmo for the rest of their lives without any judicial review. And they do not want to retroactively authorize the use of cruel and degrading treatment, so that information gleened from torture can be admitted at a military commission trial.
I have no idea what they will ultimately come up with as a solution, but it didn’t have to be this way. It was the decision to torture people and expose them to religious and sexual humiliation, stress positions, and snarling dogs, that made it impossible to use a courts martial to handle the detainees. We have many laws that have the effect of assisting the criminal in order to protect the innocent. When dealing with foreign terrorists, we may find it necessary to set the balance more in favor of the prosecutors. We may find that special courts are required and that there should be some limitations on the kind of evidence that the defendant can see. But, we can never repudiate basic human rights and conventions against torture, nor can we admit evidence collected under cruel and inhumane conditions.
If Captain Ed believes that creating a Kafkaesque hellhole in Cuba has some deterrent effect, he should also realize that it has other negative effects. America loses the ability to lead on human rights. Having lost our reputation for respecting human rights, our soldiers in captivity are less likely to be treated humanely.
We would do better to be seen as scupulously upholding human rights, rather than holding people in secret gulags, desecrating their religion, and waterboarding them. Whatever deterrence we create with these tactics is fairly minimal, and is vastly outweighed by the negative consequences of breaking the law and acting inhumanely.
We beat the communists, not because we threatened to build the Stategic Defense Initiative, but because we upheld human rights, freedom, and liberty. We set a much better example. People looked up to us. They wanted to move here and enjoy our rights. They wanted to reform their own governments to be more like ours and less like Moscow’s. That is how we can beat the jihadists, too. Not by emulating a Stalinist state and using the threat of torture and indefinite imprisonment, but by setting a better example and offering a better future.
And, just on principle, torture and indefinite detention is wrong.
Alexander Hamilton noted the importance of habeas corpus in Federalist #84. Quoting Blackstone, he made the point.
“To bereave a man of life (says he) or by violence to
confiscate his estate, without accusation or trial, would be so gross
and notorious an act of despotism, as must at once convey the alarm of
tyranny throughout the whole nation; but confinement of the person by
secretly hurrying him to gaol, where his sufferings are unknown or
forgotten, is a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.” And as a remedy for this
fatal evil, he is every where peculiarly emphatical in his encomiums on
the habeas corpus act, which in one place he calls “the BULWARK of the
British constitution.”
