Closing Guantánamo Bay: The Buick Solution

General Motors has, after its traumatic financial reorganization, reduced its branding from eight or nine different brand names to four. One of its brands, GMC, is reserved for trucks, so it has only three levels of branding available for its passenger cars. Roughly speaking, Chevrolet is now the its entry-level GM brand, its mid-level brand is the Buick, and its luxury line is branded Cadillac. This will become important later on in this post, so just file that bit of background away as I move on to the substance of my thoughts this morning, which have to do with national security and justice.

It is probably beyond trite at this point to say that closing the prison for (accused) terrorist at the U.S. Naval Base on Guantánamo Bay, Cuba, is much easier said than done. While the facility itself can indeed be rendered into the past tense with a stroke of the President’s pen, the prisoners therein cannot. And we are talking about some Very Bad Men in that prison.

Why close it at all, then? Why not stop worrying and learn to love Guantánamo? Well, in one sense, the President painted himself into a corner, having offered as a prominent campaign promise the closure of the facility. He’s having his feet held to the fire on that from his left flank — and, oddly, from his right, insofar as he’s stuck his neck on the issue and seems completely incapable of admitting his own past naïvité on the matter.

One reason that is heard for closing the prison at Guantánamo is that it is purportedly the “number one recruitment tool” of Al Qaeda. Benjamin Wittes gives lie to that point. The presence of American military troops in Iraq and Afghanistan is the #1 recruitment tool we have handed the bad guys, and misconduct by U.S. military personnel is the #2 tool. If the objective is to starve Al Qaeda of new recruits, closing Guantánamo isn’t going to make a lot of difference.

The pressure to close Guantánamo, at least according to Professor Wittes, is really in the form of diplomatic rhetoric from our European allies, who see the prison as a symbol of the Presidency of the detested George W. Bush. Ameliorating our European friends’ distaste for our Immediate Past President is a markedly insubstantial justification for letting loose on the world about two hundred dirtbags against whom we have military intelligence strongly indicating a predilection for Blowing People Up.

This is particularly so when privately, most of the nations involved do not particularly want us to do this and are quite satisfied with our indefinite detention of people they do not particularly want delivered back to them. It seems we can point to Wikileaks for confirmation of that last fact.

So the real reason to loot at closing Guantánamo is that keeping Guantánamo open is somehow inconsistent with our own ideals. Having a federal prison located on a naval base outside the de jure territorial limits of the United States is not something that ought to give anyone much heartburn from a Constitutional law perspective. The Federal government can operate a prison, and it may do so wherever it exercises de facto power. Two things about Guantánamo are troubling from a Constitutional law perspective, though: 1) the claim that prisoners there are tortured, and 2) the prisoners are deprived of liberty without due process. Neither of these issues has anything to do with the location or name of where those things are purportedly happening.

As to the first issue, that too can be addressed with the stroke of a pen by the President. It can and should be addressed by Congress. The rule is, and ought to be, stark and simple. Regular Readers are familiar with it by now: no torture, ever. Someone who tortures someone else should be punished. We should be readily willing to offer inspections by NGOs for the purpose of verifying that we do not torture our prisoners because we should not be torturing our prisoners. This does not mean granting the NGO inspectors unfettered access to the prisoners, who are, after all, Very Bad Men.

As to the second issue, the practicalities of providing regular trials in civilian courts to at least the most prominent of these prisoners has proven a significant challenge. So far, only one such trial has taken place, U.S. v. Ahmed Khalfan Ghailani. Ghailani was charged with participating in the 1998 bombings of the embassies in Kenya and Tanzania which killed hundreds of people. The result of the trial was one conviction of conspiracy for the Tanzania bombing and acquittal on the other 284 counts brought against him. While I think this demonstrates the resilience of the regular court system to handle such cases, this ambiguous result is seen as a setback for the government’s handling of these prisoners through the judicial process.

The significant issue raised by the Ghailani trial was that Ghailani’s statements elicited under torture were excluded from evidence, as were interrogations that resulted from those torture-induced statements. This was the legally correct way for the court to handle the issue. Those who defend the use of torture point out that it is sometimes effective, that when done right it can elicit a great deal of information from the tortured prisoner. Maybe yes, and if so that’s a very variable sort of case-by-case calculus, but torture is nevertheless incompatible with due process and incompatible with a ban on cruel and unusual punishment, both of which are Constitutional mandates and both of which are beyond the legitimate exercise of governmental power.*

More obnoxiously, the Administration announced before the trial started that Ghailani would not be freed regardless of the result of the trial. While this may be the right national security decision, it begs the question of why a trial is held at all. A show trial is not due process; indeed, it’s better from a due process perspective to say “there will be no trial” than to have a meaningless trial.

So the question of dispensing due process to these prisoners is difficult. Civilian trials and civilian rules of justice in our civilian courts are the Cadillac of due process, but the Cadillac presents difficult challenges in this setting. So maybe we can’t afford a Cadillac here.

Military tribunals may well be an effective answer to this conundrum; that might not be a Cadillac solution, but it might be a Chevy hatchback (I think those are called Aveos this year but I can’t keep track anymore). Gets you where you want to go but not in any particular style or comfort, which translates to “it doesn’t really look like something diplomatically or legally satisfactory.”

Congress could solve this problem by creating a new court and a reasonable and fair set of rules of evidence and procedure designed to handle these issues. This could be a step up from a Chevy even if it falls short of being a Cadillac — call it a Buick.

What we’re doing right now isn’t even on the GM rating scale — it’s walking. But if we can’t afford a Cadillac and the Chevy isn’t going to cut it, then the compromise is the Buick.

Congress has authority to do this under Articles I and III of the Constitution. Attempts have been made to go this route, but as of yet Congress has failed to exercise its power in this manner and the President has failed to pursue this solution. Were the President doing more than flailing about to balance the national security needs of keeping these Very Bad Men under our control, and the diplomatic and Constitutional imperatives of affording due process to everyone under our power, he would be tackling the problem from this angle. To be sure, there are complex issues here, but they can be worked out and we have no shortage of smart lawyers familiar with the issues who can contribute to resolving them.

Why he isn’t, I don’t know. Perhaps he hasn’t had time to really consider this in between the myriad of other things demanding his attention; perhaps he lacks faith that Congress will put together something that strikes the right balance between these competing pressures; perhaps he genuinely lacks vision in this area or substantial concern for it, a bitterly disappointing proposition but one which I no longer find surprising. But that, in my sight, is the appropriate route towards undoing the Gordian knot of lawfully disposing of the Very Bad Men in Guantánamo Bay.

* I note that many of those who would defend the government’s ability to use torture to extract information from a prisoner are of an identity with those who would criticize the government for reaching beyond the boundaries of its legitimate exercise of power by imposing the “individual mandate” of the “Obamacare” health reform law. Of course, a principled reading of the Constitution is too much to ask from any particular faction in politics these days and those of us who are willing to show real faith to the Constitution as an instrument of liberty and a practical and effective limitation on government’s power are still looked on as the “crazy uncles” of American politics, who may raise a good point every now and again but mainly are to be politely disregarded.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.