Wednesday, June 10, 2009

Cleaning up Gitmo

If I was unjustly imprisoned for years by an individual, a drug cartel, a rebel army or a sovereign government, I'm sure that fury and hatred would have long ago boiled over in my brain and that taking violent action against my oppressor could be something I'd agree to. The fact that The New York Times reported last month that an unreleased Pentagon study showed that one in seven terror suspects released by the US were back in the fight against this country isn't surprising. The mystifying part is that the other 86% have seemingly been able to put the experience behind them enough to move on with their lives. (In the days after the NYT story it was reported that the actual figure was probably less than one in seven.)

In the past 48 hours we've heard that one suspected terrorist has been transferred from Guantanamo Bay to New York City to stand trial and that the tiny island nation of Palau, formerly a US protectorate, has agreed to take up to 17 Chinese Muslims -- a group that has been held since 2002, even after a federal judge found that they have not been connected to any crimes.

The saga of those held at Gitmo is shameful, complex and ongoing, but the crux of the matter is that the US government has been holding people -- some dangerous, but most not -- for years without charges in violation of both our Constitution and the Geneva Conventions. Some on the right are in a tizzy about the actions of the Obama Administration, but the president recognizes that something needs to be done with the remaining 240 detainees. We cannot, and we should not, continue to hold them indefinitely without some sort of legal process.

The clock cannot be turned back, but the Bush Administration completely boggled this issue. As I see it, individuals held for violating criminal statutes need to be processed through the justice system of the government where the alleged infractions took place, whether in the United States, Iraq or Afghanistan. If someone is captured as a prisoner of war, then international law applies and that person has to be released when the battle is over (in these cases, when Baghdad or Kabul fell), unless the individual is charged with war crimes. Then an international war crimes tribunal should handle the case. There are no other categories and governments cannot just create a classification ("enemy combatant") to suit their needs.

It is time for America to move forward on this matter and for the Right to stop playing the fear card.


Anonymous said...

Jimbo you made some excellent points.A great deal of these "prisoners" have been detained for ridiculously long periods of time. I feel that they should have been entitled to a speedy trial,but not in a civilian court.A US military court should have heard these cases promptly,and acted upon them.Because they are not prisoners of war in a conventional sense,they are not representing a nation,merely themselves.Therefore the rules of the Geneva convention are not applicable in these instances.

N.starluna said...

I partly agree with anonymous at least insofar as there is precedence for the use of military tribunals.

However, historical the use of military tribunals to prosecute what we today call terrorists (in previous eras they were called saboteurs) occurred in such very different circumstances that we should question whether they are the appropriate legal mechanism today. American use of military tribunals in the past has always occurred when the "combatants" were captured on American soil. The most famous being the eight Germans who were tried and executed in 1942.

What troubles me about the current situation is that the vast majority of those detained were not captured "on the battlefield" by American soldiers. Rather they were "captured" by as part of a policy that provided rewards for bringing in "terrorists". The Uighars Jimbo mentions are not even the most egregious example of wrongful detention as a consequence of this policy. There were also teenagers who were "captured" while herding the family goats. Others were brought to the Americans as terrorists by someone in their village who simply wanted to take his land.

There are two books criticizing the historic use of military tribunals. Louis Fisher wrote "Military Tribunals" in 2003 and Barbara Olshansky wrote "Secret Trials and Executions" in 2002. Both show that the basis for the military tribunals used in the past is shaky at best.

Anonymous said...

N.starluna made some good points.I was referring to persons captured on the battlefield.God knows how many innocent people were "rounded up" on trumped up charges, and held for years meanwhile being innocent!

Anonymous said...

Book them a flight on Air France.