The decision to resume trials at Guantanamo Bay, although long anticipated, was received with dismay by many and criticism by most. The attacks came from both left and right; the disillusionment of the families of 9/11 victims was clear. No one was happy.
The best way to finally resolve the Gitmo dilemma is for policymakers to put partisan politics aside and generate both a short-term (for the 172 detainees at Gitmo) and a permanent (for future captures in this generational war) solution. Congress needs to hold hearings to determine the best way ahead and provide the president with one system, one solution, and one venue for the detention, interrogation, and trial of al-Qaeda fighters.
The military commissions are lawful, as I and many other conservative commentators have repeatedly said. They are well grounded in statute (the Uniform Code of Military Justice); in history (for those who violate the laws of war); and precedent (the Supreme Court has said that employing military commissions is constitutional, at least in traditional armed conflict).
However, as a matter of policy, they are flawed and their legitimacy has been questioned for over a decade. They are appropriate when used, as they have been throughout our nation’s history, in traditional armed conflict. However, the war we are engaged in is novel: There is no nation-state to negotiate with; every al-Qaeda fighter violates the Geneva Conventions and the customary laws of war (in fact, by doctrine and oath, they swear to do so); they wear no uniforms, etc. To have held only five trials in ten years erodes the tribunals’ legitimacy in the eyes of many — both within the U.S. and beyond.
The nation has still not fully realized that neither a pure law-of-war model nor a civilian-law-enforcement model is properly applied in this struggle; the civilian courts are not the right venue to try al-Qaeda fighters, and neither are the military commissions.
At this point, there are more questions than answers. Why are military commissions and Gitmo now lawful and acceptable when two years ago they were neither? Do we still use civilian courts? If so, for whom? What about “high-value detainees” (HVD’s) such as KSM — is he going before a tribunal again? If so, why? What about the rise of radicalism within the United States, so-called homegrown terrorism? If an American is found to be working with an al-Qaeda fighter in Yemen, does the former go to our civilian courts and the latter before a military commission? What about habeas hearings — do we have procedures yet for the courts to make these critically important decisions? What about indefinite detention — does Congress have a say?
Congress needs to step forward and hold hearings and get answers to these questions. Otherwise, the restart of the military commission trials at Gitmo will only cement the ambiguities we have been mired in for the past eight years.
— Glenn Sulmasy is the author of The National Security Court System: A Natural Evolution of Justice in an Age of Terror (Oxford University Press).