As the dust settles over the decision by the White House (a course of action spearheaded by Attorney General Eric Holder) to try Khalid Sheikh Mohammed and several other Guantanamo Bay detainees, what I do not see the Obama Administration taking the lead on is working to establish a uniform approach toward future prosecution of terrorists.
There are three primary policy options to be considered on this issue of how the detainees being held at Guantanamo Bay should be dealt with: prosecute them in a court of law; try them in military tribunals; or simply leave them at “Gitmo” indefinitely.
Each point has its ardent proponents who are as galvanized in their opposition to the other options as they are in their support of the one track which appeals most to them.
Several key principles stand at the heart of the respective arguments for those three approaches:
- Terrorists are criminals engaging in criminal activity and as such ought to be tried in a court of law in accordance with our Constitution;
- They are part of a larger, international collection of individuals who are at war with the United States and our allies and thus fall under the jurisdiction of a war crimes tribunal;
- They stand alone since their actions are of a military nature yet they are foreign nationals who operate in a manner which demonstrates they do not recognize the sovereignty of nations or their borders -- therefore they have no rights under either the United States Constitution or the Geneva Convention.
In each of these bullet points, however, the Geneva Convention is invoked in some way. This international treaty was drawn-up as a means to hold countries -- and in particular their government and military leaders -- accountable once peace is achieved for actions taken during times of war between them.
In the case of terrorist organizations such as al Qaeda, we are left with a quandary that needs to be sorted-out before we begin picking-and-choosing how to move forward with the terrorism suspects currently in custody as well as those we can expect will be detained in the future. The problem, though, is there are valid arguments to be made on all three opinions.
Former President George W. Bush’s failing on this issue was he opted for Door #3 as time went on (although to their credit they did quietly pursue new homelands to relocate GiTMO detainees who were deemed to not be a threat) and continued along this path without any apparent plan to formulate a uniform policy beyond that. The key national security players in his administration assumed the American public would unanimously adopt the attitude, “Well, they’re terrorists so just let ‘em sit there indefinitely.”
What they failed to anticipate is Americans would become increasingly uncomfortable with the approach of leaving them incarcerated without due process of some kind -- be it through a civil or military court. While to a certain extent it is petty (not to mention nauseating) to insist some semblance of rights be extended to terrorists in light of 9-11 and the horrors being inflicted upon American troops in Iraq and Afghanistan, we must remember we are a nation founded on principles and ideals of liberty, rights, and justice -- that our system of justice stems from liberty and rights and not the other way around.
Where President Barack Obama is failing on this matter is his administration blindly insists that we showcase the American judicial system for the world to watch and admire. Just as Bush arbitrarily chose to not deal with the legality of the detainment of Mohammed (more popularly referred-to as KSM) and his cohorts, Obama now is missing the point that al Qaeda operatives and other terrorists being held at GiTMO present an unprecedented situation for the America:
-To merely hold them in captivity without any form of due process simply is un-American;
-Foreign terrorists are not American citizens and therefore not guaranteed the same rights we and legal immigrants to this country enjoy;
-They also are not combatants commissioned by a sovereign nation with which we are in conflict.
But, there is an important caveat to that last point: one of the key conclusions of the Congressional 9-11 Commission is that since its formation roughly 20 years ago al Qaeda has been in a state of war with the United States and our Western allies while we relatively ignored them throughout the 1990s.
So, we have a group who are at war with the U.S. but do not fall under the provisions of the Geneva Convention -- yet because they are not American citizens they do not meet the same criteria for prosecution as in the cases of Timothy McVeigh and Jim Nichols.
Muddling the discussion even further is the fact most being held at GiTMO were captured on foreign soil by our military during combat. For most people, that last point seals the deal on the discussion: conduct military tribunals for these individuals and get it over with.
Standing in direct contrast, though (and keeping the argument going in an exhaustingly circular nature), is that we have come to accept the definition of terrorism as being criminal activity. Based on that, we are at the same time obligated to try them in a court of law.
All of these points and counterpoints bring us back to the fact Bush and Obama have gone astray with their respective policies on the matter. Their unifying mistakes are not researching and developing a new yet uniform manner and approach to bringing foreign al Qaeda operatives to justice; and then assuming their Presidential successors will simply follow their footsteps in dealing with them.
A hybrid approach of some kind needs to be established. Bush’s and Obama’s choices each have been the justice system equivalent of trying to ram a square peg through the round hole. But overcoming their blunders and preventing more of the same down the road will -- admittedly -- be a long process that would not just require but demand a completely open debate about how to resolve this issue.
The best and most trusted minds of American law need to be brought together with all views properly represented (meaning allowing neither the likes of Bill Clinton or John Ashcroft to hijack the process).
Whether we conduct military tribunals or continue with the efforts to try KSM in federal court, part of the reasoning is to adhere to the Geneva Convention. But since the Geneva Convention does not adequately address terrorists captured in the battlefield, we are left with the inevitable truth that Geneva needs to be updated under the same mindset to reflect this new reality. When I say “updated,” I mean amended not rewritten.
And, it goes without saying that adding such language to the Geneva Convention would inevitably be a time-consuming endeavor -- requiring delegates from a multitude of nations to agree upon its language. Then we have the time needed here in our country to hash-out a plan around which the people of the United States can unequivocally rally. Most importantly, it must not be a rush-job. To reiterate, to ensure it will be a solid policy the entire process must be public.
Related side notes:
With the trial of al Qaeda operatives -- KSM in particular -- the truly greatest concern is with the risk of compromising national security resulting from potential intelligence leaks during the process of disclosure. In order for the criminal trial to work all evidence must be made available to the defense counsel. I can’t see how this can take place without classified material exchanging hands.
Our nation already has had to deal with an attorney for one terrorist who passed along radical decrees and instructions for his client. What will we have to worry about taking place with this?
I would take time to ponder whether or not the Obama Administration has properly thought all this out. Instead I am going to give in to my bias and simply state the answer to that question is clear and easy to deduce: “No.”
Obama and Holder do not appear to be particularly concerned about protecting sensitive information tied to the capture of those facing trial. This is their Big Show for the world. As the Obama Administration’s approach to foreign policy continually comes under greater and harsher scrutiny, this President wants nothing more than to demonstrate to his critics and the public at large that his way is superior to his predecessor’s (not that it would be that significant of a challenge; but Obama thus far has actually managed to display less acumen for leading this nation on foreign policy than Bush). If it means selling out as much of our intelligence community and their sources in the field as possible, once again it is a sacrifice he is willing to make.