The prison located at Guantanamo Bay in Cuba has been like a roller coaster ever since it was constructed. President Obama campaigned to get rid of the prison but those dreams faded time and again. Even hawks such as John McCain had discussed potentially closing the doors to Guantanamo for good. The broader question concerning the closing of Guantanamo is what to do with the prisoners being held there? Many prisoners have not been charged with any crimes and are being held captive as war prisoners or suspected terrorists.
The Pentagon will soon begin to hear cases of those imprisoned at Guantanamo. As the New York Daily News writes, "a formal review process of men being held at Guantanamo Bay without charge has begun as part of
an effort to close the prison.” Under the Bush Administration, the legal argument to the duration of detention was that these prisoners are POW's and not only are they being lawfully detained under international standards but they also can be detained as long as there is a conflict. This was such an expansive reasoning which many federal judges dismissed on the grounds that the conflict could last several years and potentially have no end in sight. Also, given the nature of an uncharted War on Terror, what constitutes a "conflict?"
Civil rights groups have long protested the imprisonment because the detainees have had no rights to habeas corpus, no right to an attorney, and they are stuck in a legal limbo being held "out of the jurisdiction of the United States' legal system," (more on this later.) Last week several civil liberty organizations sent President Obama a letter urging him to "1) appoint an envoy in the Defense Department to lead the effort to
close Guantanamo, and 2) direct Secretary of Defense Chuck Hagel to use his
existing statutory authority...to transfer cleared detainees from Guantanamo
to foreign countries that will respect their human rights."
This broader argument regarding the rights of the foreign detainees has been reignited with the capture of the terrorist, al-Libi from Libya by United States Special Forces. Last week al-Libi was being "lawfully detained" on a U.S. Navy vessel but today he has been brought to New York to face charges of terror.
This matter is complicated when applying domestic rules of law to foreigners-especially those who have done such heinous and reprehensible things as al-Qaeda operatives. It is even more complicated when applying the Justice Department's White Paper justifying the use of force against Americans who take up arms against the United States. The Obama Administration maintains that U.S. citizens who take up arms against the U.S. surrender their
Constitutional rights. By this reasoning, habeas corpus should not be afforded to foreign terrorists. The sole reason for constructing the prison at Guantanamo Bay was to "hide" these foreign nationals from the domestic courts and to avoid a Constitutional dilemma. This went so far as some Bush Administration lawyers (John Yoo in particular) maintaining in certain times that the President was free from any domestic and international legal constraints and could do whatever he saw fit to manage the situation.
I agree it is difficult to apply Constitutional rights to foreign terrorists. Several legal precedents came out of the Bush years, most relevant to my last point, the decision in Rasul v. Bush. The Supreme Court ruled that Guantanamo Bay was within the jurisdiction of the domestic legal system despite being on the soil of another sovereign country. Their reasoning was that since Guantanamo was solely under the jurisdiction of the United States, therefore is not exempt from its laws and legal system. In Rasul, the plaintiff was also afforded habeas corpus because, as Justice John Paul Stevens wrote in the majority opinion, habeas corpus is not dependent on citizenship. This was a major blow to the Bush administration.
International tribunals may be a solution to this complicated issue. After World War II, the world put many war criminals associated with the Nazi party on trial in Nuremburg, Germany under the jurisdiction of the International Military Tribunal (IMT). In the Nuremburg Trials, the United States, Great Britain, the Soviet Union, and France-the four victorious allied powers-provided judges. The IMT indicted the defendants on charges of crimes against peace, war crimes,
and crimes against humanity. The IMT defined crimes against humanity as "murder, extermination, enslavement, deportation...or persecutions on political, racial, or religious grounds."
War crimes were established during the Hague Conventions of 1899 and 1907 and were again refined during the Nuremburg Trials as well as through various international treaties. Prosecuting guilty operatives in the War on Terror should not just fall on the shoulders of United States because many other countries are also affected. In the cases of Middle Eastern nations, where many such terrorists call home (Afghanistan, Saudi Arabia, and Yemen, to name a few), it is important that they distance themselves from this type of behavior. These terrorists are independent actors who are not fighting for any sovereign nation but are fighting for a religious ideal, although many Middle Eastern nations (Saudi Arabia, for instance) have secretly provided funds to certain terrorist groups. While it is important to gain the support of nations such as Russia, its leader, Vladimir Putin seems to have his own agenda. He has been hard pressed to defeat terrorism and deter it in his own country. After the Muslim Revolution in Chechnya, he has sought to send a message to religious radicals. And what better way to accomplish this than by joining an international tribunal specifically prosecuting terrorists?
The former President of Chile, Augusto Pinochet was indicted on war crimes after he was arrested in Britain for certain atrocities committed in his country. This was the first known instance and application of "universal jurisdiction" which “allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity.”
The global community has a responsibility to deter terrorism because many nations have ratified war crimes treaties. The United States is now attempting to prosecute terrorists in domestic courts despite some terrorists never having set foot in the country. With an established international terrorism tribunal, Constitutional dilemmas will be moot and the world can have a say in punishing the perpetrators of grotesque atrocities such as 9/11. This may also encourage future Presidents to step-down sovereignty breaches such as the use of drones. The War on Terror severely weakened our relationship with Pakistan adding a tainted schism after we killed Osama bin Laden. If the United States knew the rest of the world was willing to take up the cause of justice against belligerents, relations may sweeten.
Still we must face our own problems today. The Obama Administration has taken serious steps, first by using Special Forces to capture al-Libi instead of killing him with a drone strike, and then by bringing him to domestic soil to be tried. Many are worried that if Guantanamo is closed there would be no place to incarcerate these prisoners. Some have suggested maximum security facilities within the U.S. borders. Either way, our Constitution has certain guidelines and despite what some like Mr. Yoo may say, the President has to abide by them. International law and treaties are not to be excluded either. Closing Guantanamo should be a priority and I think officials are starting to listen to the legal challenges. The legal rubber band has also been stretched too far and is about to break under the tension of hunger strikes and news of detainee mistreatment. There needs to be a plan in place and it needs to be consistent with domestic and international law and no parts of it should be immune.