The Guantanamo Problem

Oh, what to do with Gitmo? The U.S. finds itself in the midst of true quagmire. 

On one hand we have apprehended, by many accounts, some pretty unsavory players on the world scene who have been shown to go back and inflict the kind of harm on American and other forces that we have feared they would. On the other hand, there are some truly dubious reasons put forth for keeping some of the detainees locked up, without access to any representation, without any endpoint to their detention, and under the hope that onlookers trust the process put forth in the Military Commissions Act.

The problem here appears to turn on credibility: do we trust a military tribunal system in whose interest the long-term detention of combatants without a flag seems to be, especially given the detainees' potential ability to provide valuable, if not actionable intelligence. Or do we trust a legal system who is willing to afford those caught perpetrating the most wanton aggression against our countrymen its legal defenses? One group seems ignorant to the basic tenants of the fundamental processes of our democracy while the other ignorant of the prima facie weirdness of offering enemies of our state deferential protections.

But the problem is more fundamental than trust in our government to act effectively in good faith and in our defense. The problem of Gitmo is the central problem of the so-called War on Terrorism: what the hell is "terrorism" anyway and how do we treat it? Is it a criminal enterprise or asymmetric military operation? Are the captured criminals or prisoners of war?

The Military Commissions Act (perhaps just window dressing on a desire to maintain open-ended detention) struggles to deal with stateless combatants and offers a plan to determine their eligibility for inclusion in its processes that barely understands the complexity and gravity of its own purpose. The effect is a quasi-jurist prudence that seeks to try and convict the captured for crimes but not afford them the legal protections essential to American democracy. Also, it regards supposed criminals as warriors who can only be dealt with by military processes.

The result is a juxtaposition of military and civilian institutions that fails to ground itself in the best principles of either. Fueling the polarized interpretations of the processes and institution of Gitmo are the broad spectrum of real possibilities: open-ended detention of potentially innocent prisoners; release of clearly guilty prisoners who rejoin the fight against America; persons of truly unknown status who have no access to disinterested, competent representatives; and obvious combatants who are afforded unprecedented civilian legal rights.

So, this week the Supreme Court  handed down a decision that was sure to be riddled with contradictions, as Scalia's dissent and many commentaries have indicated. But the opposite decision would have been little better. Basically, the Court had to choose between allowing for the disappearing of citizens or a process that puts combatants right back on the battlefield. 

In the end, the country continues to suffer from poorly conceived policy.