The president perhaps revealed more than he intended this week when he criticized other countries for avoiding any involvement with Guantánamo. They did so for entirely sensible reasons, and by now the soundest legal resolution to it for the U.S. may also be the most politically unpalatable.
For more on pruning back executive power see Pruning Shears.
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The president had his final press conference this week and it caused quite a stir. An unusually adversarial White House press corps (glad you could make it!) and an uncharacteristically reflective subject produced more noteworthy comments than a year’s worth of them normally create. The president came off poorly, and many observers – including right leaning and solidly right wing ones – could not help but note unflattering similarities to Richard Nixon. But despite the unusually candid tone and body language – by turns unrepentant, defensive, petulant and arrogant – and the mostly unyielding insistence on his rightness, perhaps the most revealing moment did not seem to get much scrutiny.
When asked whether his administration’s military and detention policies “have damaged America’s moral standing in the world,” he fired back that America is plenty popular just about everywhere but the salons of Europe. That part of the answer got plenty of play. But then he said, “And I understand that Gitmo has created controversies. But when it came time for those countries that were criticizing America to take some of those – some of those detainees, they weren’t willing to help out.” The first and most superficially interesting part of the answer is his stammering on “some of those.” The White House has been exceedingly careful to refer to those held in Guantánamo as detainees and not prisoners. Calling them prisoners brings those quaint Geneva Conventions into the picture and would require them to be treated according to an organized, recognized and legitimate legal system. Calling them detainees allows the administration to keep them in the improvised and illegitimate activities they continue to insist is a valid new legal system. Was the president about to say “some of those prisoners”? And what does it say about his policy that the language regarding it must be so frequently parsed, checked and otherwise tailored?
The truly remarkable part of his statement is his assumption that other countries that have been critical of this world of shadows have some obligation to take the prisoners off our hands. Other countries have been critical because these policies go against centuries of Western legal, judicial, civil and human rights traditions! The president acts as though it is done in a fit of pique, or contrariness, or distaste for him personally, or reflexive anti-Americanism or moral obtuseness. It does not seem to occur to him, and he may be incapable of imagining, that they have taken these positions out of a deep ethical repugnance for the policies themselves. As such, what obligation do they have to become entangled in our moral quagmire? Perhaps they objected in the first place precisely because they could envision just the dead end we now find ourselves in, and did not want to take that dilemma on for themselves.
And a dead end it is. I have read and heard numerous purveyors of conventional wisdom in the last few weeks ponder sagely on the Gordian Knot we are confronted with. It goes along these lines: Well, we have had these people warehoused for years. We have to close it down. But where would they go? You can’t just send them to Leavenworth; politicians won’t allow it. It would be easier to get nuclear waste to Yucca Mountain. You can’t bring them into the legal system because once cruelty-induced evidence is thrown out there may not be enough left to sustain an indictment much less a conviction. You could try to create some alternate procedure for trying them, but that would ultimately come down to trying to find a way to admit the fruits of torture into evidence. Yet at least some of them (probably more than when the place opened) harbor extremely ill feelings towards us, and a few among them have actively conspired to do us harm.
If we can’t hold them, can’t convict them in our legal system and could only potentially convict them in a kangaroo court designed to let us rationalize inhumane treatment, what is left? The answer is obvious, of course (if politically treacherous). They have to be released back to their home countries. We have to allow them, even ones with untold secrets, unhatched plots and unstinting hatred towards us, the worst of the worst if you will, to go back where they came from. It would let the rest of the world, even those who “weren’t willing to help out,” know that we will not attempt to profit from lawlessness. We would send the message that we will put ourselves at a practical disadvantage when we run afoul of our own – and the rest of the civilized world’s – standards for decency. And then we better double and triple check our intelligence gathering capabilities.