The Corner

On Closing Gitmo

Tom Friedman’s impassioned call, in Friday’s New York Times, for the closure of the Guantanamo Bay detention facilities, both misdiagnosis the problem and the solution. He claims that Guantanamo is undercutting American policy abroad, and endangering American lives, because it is so very unpopular in the foreign media–especially the London papers–and is “inflaming sentiments against the U.S. all over the world and providing recruitment energy on the Internet for those who would do us ill.” In fact, anti-American spleen is pretty much the normal state of affairs for much of Fleet Street (try reading what the British press said about the Lincoln Administration), and al Qaeda’s recruiting efforts were doing just fine well before we started housing its operatives in the Caribbean sun. Closing Guantanamo would eliminate neither phenomenon.

In fact, it is not merely the Guantanamo Bay installation that has outraged the British and European chattering classes, it is the entire war on terror. They do not accept that the September 11 attacks were a casus belli, or that the United States is engaged in a legally cognizable armed conflict, to which the laws of war apply. Most will claim that the attacks were a “crime.” On the quiet, many believe that we got what was coming to us. To please them, and they would not stayed pleased for very long, the United States would have to adopt a law enforcement model which would not merely make protecting the American population more difficult, it would make it impossible. This was, in fact, the model followed by the Clinton Administration in the 1990s, and it did not work. That policy resulted in the deaths of thousands of Americans.

Mr. Friedman accepts this with too much equanimity. If we have evidence against any of the detainees, he suggests, we should “put them on trial, convict as many [as] possible (which will not be easy because of bungled interrogations) and then simply let the rest go home or to a third country. Sure, a few may come back to haunt us.” What a charming way to describe it–a few may come back to haunt us. For al Qaeda, of course, haunting does not involve shouting boo in the night. It involves arranging matters so that scores of our fellow citizens must choose between burning to death and jumping 100 stories to the pavement.

It may well be that the only way ultimately to defeat Islamicist terror is to transform the Middle East into a region of democracies. That, however, will take years–if not decades. In the meantime, the United States cannot simply ignore attacks on its citizens, and addressing those attacks with only police, prosecutors and the courts will not be effective. The criminal justice process is reactive–it cannot prevent mayhem on a global scale.

Using armed force, including the pursuit, capture and detention of enemy combatants, to defend American lives is in no sense a betrayal of American values. What the critics of the war on terror policies are really complaining of is that the Untied States has simply refused to accept their values. For thirty years the United States has steadfastly rejected efforts by “progressives” to create a new and beneficial legal regime for guerilla and irregular fighters like al Qaeda and the Taliban. Such individuals do not themselves obey the laws of war, and they are not entitled to be treated as honorable, lawful combatants. They can be held until the conflict ends, and are not entitled to a criminal trial unless criminal penalties are to be imposed. Detention during hostilities is not such a penalty. It is, in fact, a boon. Under the law of armed conflict our right to detain captured enemies is the basis of our obligation to take them prisoner in the first place, to grant them quarter on the battlefield. Overall, in establishing the facility at Guantanamo Bay, in denying captured terrorists the rights and privileges of honorable POWs, and in adopting stressful interrogation methods that do not amount to torture, the United States has acted entirely within its established legal rights.

There have been abuses, some of them very serious, and our enemies have used this as a propaganda tool. This, however, is not uncommon in war. Indeed, prisoner abuse occurs in peacetime as well, in virtually all civilian penitentiaries, whether in the U.S. or abroad. Unlike our enemies, however, the United States investigates, prosecutes and punishes those responsible for instances of abuse. This is how our values can be, and have been, vindicated.

David B. Rivkin Jr. — David B. Rivkin, Jr., is an attorney, political writer, and media commentator on matters of constitutional and international law, as well as foreign and defense policy. Rivkin has gained national ...

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