After Gitmo

Finally: a thoughtful, balanced "what if?" on the ramifications of closing the detention facility at Guantanamo Bay, by Corine Hegland in the National Journal:

[P]icturing what happens after Guantanamo isn't a straightforward exercise. Vice President Cheney, interviewed on July 31 on CNN, said he would prefer not to close the prison: "If you closed Guantanamo, you would have to find someplace else to put these folks." Consider, for example, its new inhabitants from East Africa. One is suspected of being involved in the 2002 hotel bombing in Kenya; the other is said to have been a courier between Qaeda elements in Pakistan and Islamists in Somalia. Both are said to be involved in the armed conflict between the United States and Al Qaeda; both are said to possess valuable information. It is not known if sufficient evidence, or legal jurisdiction, exists to bring criminal charges against either.

If Cuba weren't an option, where would they have gone? To Ethiopia, with others from Somalia, where U.S. agents could interrogate them without actually taking custody? To an American-run prison in Afghanistan? Into the hands of the CIA and its undisclosed locations? To a facility within the United States, either a federal prison, alongside the American in Texas who was charged, or perhaps a military brig? If brought to the United States, what would the courts make of these prisoners who haven't been charged with any crime and yet aren't quite prisoners of war, either? At least one of them, the Kenyan, was captured at a currency exchange office, far from any battlefield; is he an enemy combatant? . . .

Guantanamo, it turns out, doesn't really matter. It's the idea of Guantanamo that counts, the notion of a place where indistinct rules govern ill-defined prisoners from an indefinite war on terrorism. Take that place away, force its inhabitants, present and future, into the bright light of clear rules and laws, and suddenly some very basic questions need answers. Should the United States, at the end of the day, plan to hold forever prisoners who will never face trials? If so, what procedures should govern the process? If not, what should be done with the ones who might be dangerous?

Benjamin Wittes, a fellow and the research director in public law at the Brookings Institution, says, "The problem is not an optical problem. It's not a public diplomacy problem. The problem is that we don't have a legal regime. Building a legal regime is a very separate question from whether you choose to do it in Guantanamo Bay or somewhere else." . .

As Massimino [Elisa Massimino, the Washington director for Human Rights First] sees it, the question about what to do after Guantanamo can be framed in two ways. In one frame, that contemplated by Katyal and Goldsmith and favored by the Bush administration, the country needs to decide what laws to change in order to indefinitely detain some group of people whom it never wants to formally charge with a crime.

In the other frame, the puzzle starts at the opposite end. If this conflict will continue for the rest of our lives, as it seems likely to do, how do we want to fight it? What should the long term look like? Is the conflict more a military battle, subject to the laws of war, or can much of the fight be conducted through the criminal-justice system, using basic criminal law to capture, try, and convict the worst actors? This debate began in the 1990s, and the answers remain elusive.

(via Real Clear Politics)