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the outrage. The Bush administration has said that it might continue
to hold Guantanamo detainees even if they are acquitted of specific
offenses by military tribunals.
An official
with the National Association of Criminal Defense Lawyers huffed
the other day in the New York Times: "They create a
tribunal that they say is fair, but then they can say, 'We don't
like the results and the hell with it, we're going to hold you anyway.'
This is a follow-on to their policy of holding people indefinitely
before you charge them.…If I came out of the woods after 20
years and saw these rules, I'd think Adolf Hitler or Josef Stalin
wrote them."
Wow. Cooler
critics will skip invoking Stalin and instead complain that Bush
is embracing that old prosecutorial maxim from Alice in Wonderland:
"sentence first, trial later."
So, is the
Bush administration playing by Lewis Carroll rules in Guantanamo
Bay?
To answer,
it's important to remember what exactly the detainees are: belligerents,
parties to a war. They aren't the everyday muggers and thieves that
the redoubtable members of the National Association of Criminal
Defense Lawyers routinely attempt to get off on procedural technicalities.
So, their confinement
in Guantanamo isn't a punishment, but a preventive detention of
the sort that occurs in any war when an enemy soldier is captured.
What makes
the Guantanamo detainees different, of course, is that they aren't
everyday soldiers either. If they were, they would be POWs, entitled
to all the privileges afforded under the Geneva convention —
regular pay, comfortable accommodations, shaving gear, backrubs,
and massages (well, not quite, but you get the point).
In fact, they
are unlawful combatants. Whether they are al Qaeda or Taliban, they
belong to organizations that don't respect the laws of war, and
flunk the other tests for a legitimate army (wearing uniforms, having
a discernible chain of command, etc.).
This means
their rights under international law are minimal. They have a right,
essentially, to humane treatment and a trial with a modicum of due
process before they go to see the firing squad.
As former Reagan
and Bush official David Rivkin points out, this means the tribunals
could have been all secret, had no appellate process, and had the
same standard for guilt as a civil trial (a preponderance of evidence)
— and still amply fulfilled any international or constitutional
legal obligation we have to the detainees.
Unlawful belligerents
have always gotten harsh treatment. George Washington gave a British
spy captured behind American lines out of uniform an ad hoc trial
lasting all of three hours, with execution swiftly following.
Instead, the
new rules for the tribunals are quite generous, and really only
differ from courts martial in their appeals process and in the laxer
standards for admitting evidence.
But the tribunals
don't need to figure into the detainees' detention. In fact, it
would be better if they didn't.
The detainees
should simply be confined as long as the war continues, which could
be quite a long time. Liberal activists, of course, will yell that
this "indefinite" detention is a denial of due process
and other rights.
But there's
no reason to give the detainees better treatment than regular
POWs, who are always held until the end of the conflict (even the
guys in Hogan's Heroes had to engage in idle chit-chat with
the Germans while waiting for the war actually to end).
This is why
it is possible as a theoretical matter that a detainee might be
tried on a specific charge (say, involvement in the Mazar-e Sharif
prisoner riot that led to the murder of CIA officer), get acquitted,
then still be held for years: Acquitted or not, he is still an enemy
combatant during a time of war.
And this is
the important point. As Rivkin argues, except in very special cases,
the detainees won't be tried for anything they did, but for
what they are, i.e. unlawful combatants. Lawyers refer to
it as a "status offense."
In the ideal
scenario, detainees would be held until the end of the conflict,
then tried, essentially, for their membership in the Taliban and
al Qaeda. Just belonging to these groups — murder gangs devoted
to killing Americans — is the crime.
Once the conflict
is over and they have been tried, then we can think about punishment.
Again, their current detention is not punishment, but simply
holding them out of the war like a regular POW (if we wanted to
continue hold them after the war ends without a trial, then
there would be a big due-process problem).
When it comes
to punishment, we shouldn't be any less stringent about it than
George Washington. Membership in these criminal conspiracies should
be considered a capital offense.
They should
all be sentenced to die; then the sentences commuted for everyone
but the top leaders as a gesture of mercy and humanitarianism (unfortunately,
we may not actually be holding any top leaders). The smaller fish
could be released, and the middle ranks detained still longer, until
they are too creaky to enjoy jihad with quite the same relish.
It is unlikely
that it will actually happen this way. The Bush administration,
under pressure from international and domestic critics, will probably
be pressured to begin holding trials before the war ends. And some
of the Taliban and al Qaeda will surely go free while the conflict
is still being fought.
That would
be a shame. These men chose to fight this war, and at the very least
they should have to wait it out, not "indefinitely," but
certainly until the fighting has ended.
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