What About Gitmo? What About Due Process?

In response to an article at FrontPageMag.com, which I shared around (War IIs Over, Prison Camp Closes), I received some pushback that merited serious comment. That exchange is shown below, edited for presentation.

I shared the link to the article, and included this extract from it: “…besides, the jihadi leadership ranks need replenishing…. Certainly Obama has replenished them a great deal already. With as many as thirty percent of prisoners freed from Gitmo returning to the jihad, one would think that the Obama administration would pause and consider their plan very carefully before releasing more or transferring them to far less secure prisons inside the United States. That is, administration officials would pause and consider if they had any genuine concern for national security, but it is increasingly clear that they do not. After all, in January, al-Qaeda bomb expert Tariq Mahmoud Ahmed al-Sawah was released from Guantanamo. ”


The question arose as to the application of the Geneva Convention. It was suggested that we need “a little due process”, as opposed to indefinite detainment.

My view on that is that I don’t believe that “enemy combatants” enter an arena where “due process” applies. My take is that that is a Constitutional protection extended to citizens and, I would think, only legal foreign visitors in the US. There might be some human rights issues to be aware of for all, whether due process applies or not, whether with jihadis or illegal foreign visitors, but not “due process” under the Constitution.

Beyond that, the Geneva Convention surely does not apply to jihadis, who follow no convention but the visitation of destruction on any unbeliever at any time in any method whatsoever. There is no such notion as noncombatants in their belief system, and so I see no reason to pretend that they somehow earn or merit Geneva Convention protections.

I would ask why we would apply such notions to that population of bad actors.

The point was then raised as to whether the “War on Terror” is a war or not, with the assertion that if it is then we must apply the Geneva Convention to anyone picked up as an “enemy combatant”, labeling such as a Prisoner of War (POW).  Even further, and in my opinion even more disputable, the claim was put that due process should be afforded to anyone detained by Americans, even non-state actors such as terrorists, simply because they were apprehended by Americans, and Americans insist on due process.

In my opinion, that leap meant taking the complications of dealing with nonstate actors and placing the entire burden on the shoulders of a nation that, along with many others, is on the receiving end of horrific acts and worse plans. We can certainly strive to do better than what we have allowed at Gitmo, but I am not able to share the sentiment that we are obliged to make up the entire difference in trying to deal with combatant populations that follow no rules or conventions at all.

I would expect that military tribunals should be well equipped, if conducted properly, to mete out justice in a reasonable fashion to such a population.

Remember, as to due process, that these are not thieves knocking over the store down the street, or even street thugs from among our own citizens visiting violence on those around them. We are constrained by the Constitution, and rightly so, to afford our own citizens the protections of the due process requirement.

The folks we are talking about are operating outside any norms of the modern world, dragging ancient religious war along with them right into the modern world, as they have for 1400 years. To pretend otherwise is a bit naive.

Thinking of the situation at Gitmo, I have not understood yet the value of having no proceedings or tribunal hearings across years, but I am not outraged that there are folks seized in combat operations and held under military authority.

The summary should go somewhat along the line of “investigate fully and with some alacrity, though not in haste. Then, either determine that the prisoner is not a continuing threat, and release, or convict and detain for cause or execute, depending on the level of offense.

Near the end of the exchange there came the assertion that, absent clearly just actions, for instance with the detainees in question, America cannot say that it occupies the high ground or wears the White Hat, and that such lack has played a role in bringing respect for the US to a low around the world. Moreover, to act in a just fashion we should send anyone guilty of committing or working to commit crimes on our soil through our justice system.

I do agree about our lowered standing, and the most relevant act I would choose in this discussion was undertaken by Mr. Bush: a very ill-considered move into Iraq. That invasion cost us political capital that I knew at the time would take a generation or more to earn back, if it were even possible. I would say that question is still on the table. Much since then has gone badly from a kind of dithering over what exactly we’re doing and whom we’re are pursuing and, as a result, much confusion over what to do about whom, where, when, or how.

That does not obscure for me, though, the fact that if we are dealing with terrorists, even on our own soil, they should be treated as something more than criminals, and less than POWs. In other words, as enemy combatants with human rights but no claim to the protections of either the Constitutional or the Geneva Convention.

Political correctness has interfered with both discussion and action in this and many other arenas. In this area of action, it leads some to assert that someone is “merely a criminal”, when he or she is clearly something else, or that someone is a soldier conducting what we should consider “legitimate warfare” (we can meditate on that idea another day), when he or she is clearly not.  The resulting confusion leads to the dithering uncertainty we have seen with regard to the Gitmo detainees from the beginning. Such muddled thinking must be put aside if we are to address enemy combatants in a sensible manner. More importantly, it must be put aside if we are to have any prospect of  solving even the moderately serious problems we face on many fronts, never mind the truly difficult, complex and dangerous problems that we must address.

We don’t need, as Mr. Obama apparently intends, to do something willy nilly, just for the sake of doing something. First, do no harm. And we don’t have to address this item before everything else, but we do have to address something first. Let us put politically correct fantasies aside, discuss everything, evaluate everything, and have adult discussion about everything, so that we can prioritize, identify the legitimate first, and maybe even second and third, thing, and get something intelligent done.

If closing Gitmo is on that short list, so be it. If not, leave it alone and tend to what matters most, first.

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