Foreign Policy

Moderating the War on Terror

Closing Gitmo is a step in the right direction

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Moderation is often an overrated virtue. You wouldn't want a moderately skilled surgeon, moderately reliable brakes, or a moderately faithful spouse. But at times, moderation means something sensible: finding ways to accommodate the legitimate concerns of two opposing groups.

That concept is a big reason Barack Obama is president. Many critics find him maddeningly vague and elusive, which they take as evidence of either incoherence or deceit. But the key to his appeal is his notion that both liberals and conservatives have a piece of the truth and public policy should incorporate both pieces whenever possible.

His decision to close Guantanamo may fit that approach. The camp was created for enemy captives in the war on terror, designed by an administration that worshiped only one goal: security. But if security were our only goal, we'd emulate the old Soviet Union, which was nothing if not safe. The U.S. Constitution presumes we can achieve security and uphold individual rights within a framework of law.

The Bush administration claimed the alternative to Guantanamo was freeing bloodthirsty fanatics to prey on innocent Americans. It got help from critics who pretended that the criminal justice system was fully suited to handle enemies captured on the battlefield. Each side dismissed the concerns of the other.

The reason President Bush put the camp where he did was the belief that Guantanamo was beyond the reach of U.S. law. In practice, that meant denying inmates the guarantees of international treaties, the protections of United Nations monitoring, or access to American courts.

Hundreds of captives were locked up for years before being released, suggesting they were innocent. Many were subjected to brutal interrogations and harsh conditions. Recently the Pentagon said one inmate may not be prosecuted because "his treatment met the legal definition of torture."

The Supreme Court rejected the idea of a law-free zone, ruling that detainees had the right to challenge their incarceration in court. It found there are some things the government can't do on the pretext of protecting the nation.

Obama agrees—as did John McCain—and wasted no time announcing he would close the facility. His order makes it clear that some prisoners will be prosecuted in criminal courts, while others will be released to their home countries or other nations. That may leave some who fall in neither category.

But just as the Bush administration showed contempt for the role of law, some critics expect too much of it. The American Civil Liberties Union insists the "detainees must be charged, prosecuted and convicted, or they need to be released." Never mind if someone poses an obvious danger: If he can't be proved guilty beyond a reasonable doubt of violating the criminal code, we must send him out to do his worst.

When it comes to ordinary criminal suspects, that makes sense. But it's not a rule for wartime. During World War II, we imprisoned hundreds of thousands of Germans and Italians on U.S. soil without trial, as prisoners of war. This war is different, but it's still a war, and the rules of war allow the confinement of enemy soldiers in this country for the duration of hostilities.

This is where hardliners on both sides converge. The Bush administration rejected designating the inmates as POWs because it would have to comply with international law governing their treatment. The ACLU and others rejected it because it would allow enemy fighters to be confined without the due process afforded to criminals.

We should give the POWs a fair chance to prove they were not combatants, since unlike with members of the Wehrmacht, it's not always obvious. Those with only a tangential connection should be let go. But even Georgetown University law professor David Cole—a tireless critic of Bush's overreaching—acknowledges, "Releasing all who cannot be convicted criminally is not a realistic option as long as the war is ongoing and they pose a real threat."

Obama will probably adopt the POW option in the end, because it's the best way to reconcile the competing interests at stake—the safety of the American people, protection of the innocent, and humane norms of conduct.

For those who think you prove your fidelity to a principle only by taking it too far, this choice will never do. But among the rest of us, it could give moderation a good name.

COPYRIGHT 2009 CREATORS SYNDICATE, INC.

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  1. “While many critics find him maddeningly vague and elusive, the key to his appeal is his notion that both liberals and conservatives have a piece of the truth and public policy should incorporate both pieces whenever possible.”

    Whenever possible? I doubt it’ll be possible very often.

  2. “Releasing all who cannot be convicted criminally is not a realistic option as long as the war is ongoing and they pose a real threat.”

    Let me guess, he said this on November 5. 2008.

  3. This war is different, but it’s still a war, and the rules of war allow the confinement of enemy soldiers in this country for the duration of hostilities.

    And when do the current hostilities actually end? When “Terror” signs an armistice with the US?

  4. My problem with a lot of “moderation” and “bi-partisanship” is that it tends to represent the worst possible position between two extremes or the worst but agreed impulses of the two major parties…But yes, it can be a good thing at times.

  5. “Never mind if someone poses an obvious danger.”

    Um, and how do we decide that, Steve? The idea that governmental entities should have the power to identify and imprison persons for the rest of their lives on the basis of what they might do sounds like the precise opposite of libertarianism. I guess we should only do this if we’re really, really sure they’re really, really dangerous.

  6. I, for one, am looking forward to the idea of a partisan liberal congress ramming through all the policies and programs that it wants. I hope they override every GOP protest and filibuster and do every single disasterous thing that they want. Nothing will promote Liberty as fast as the backlash against the inevitable crushing failure of these policies, and at least then, it will be clear where to lay the blame.

  7. Never mind if someone poses an obvious danger: If he can’t be proved guilty beyond a reasonable doubt of violating the criminal code, we must send him out to do his worst.

    What a bunch of happy horseshit. “It’s obvious he’s a danger, just look at those beady eyes, swarthy skin and he mutters that moon man gibberish all day long.” Yeah that’s the backbone of any practical judicial system. Don’t worry about convicting people you “know” are guilty.

    FUCK STEVE CHAPMAN

    And also this:

    Extremism in the defence of liberty is no vice.
    Moderation in the pursuit of justice is no virtue.

    Barry Goldwater

  8. I see Chapman is back.

  9. While many critics find him maddeningly vague and elusive, the key to his appeal is his notion that both liberals and conservatives have a piece of the truth and public policy should incorporate both pieces whenever possible. Obama’s decision to close Guantanamo fits that approach.

    In other words, he’s going to do pretty much exactly what Bush did but with a little window dressing (“look! I closed Gitmo!”), which the media lapdogs will slurp up and wag their tails after years of savaging Bush for doing exactly the same things.

  10. In other words, he’s going to do pretty much exactly what Bush did but with a little window dressing (“look! I closed Gitmo!”), which the media lapdogs will slurp up and wag their tails after years of savaging Bush for doing exactly the same things.

    Excellent summary!

  11. It was pretty telling how bi-partisanship will fare when Pres. Obama told the GOP last week to remember who won the election. Rub their nose in it, and then spin it later that “We tried to overcome the intransigent right wingers but they just wouldn’t cooperate.”

  12. Isn’t it problematic to hold people as prisoners of war without congress declaring war? What about our other phony wars? By the same logic, the president could hold drug dealers or even users indefinitely as “combatants.” I’m not sure I even want to know who the “combatants” are in the ‘war on poverty.’

    Another problematic thing about this article is the statement “give them a chance to prove they weren’t combatants.” Since we’re drawing from the entire population of the world, not a tiny group of people with dog tags standing next to tanks and fighter planes, doesn’t the burden fall on us to prove that they are combatants?

  13. But just as the Bush administration showed contempt for the role of law, some critics expect too much of it. The American Civil Liberties Union insists the “detainees must be charged, prosecuted and convicted, or they need to be released.” Never mind if someone poses an obvious danger: If he can’t be proved guilty beyond a reasonable doubt of violating the criminal code, we must send him out to do his worst.

    When it comes to ordinary criminal suspects, that makes sense. But it’s not a rule for wartime. During World War II, we imprisoned hundreds of thousands of Germans and Italians on U.S. soil without trial, as prisoners of war. This war is different, but it’s still a war, and the rules of war allow the confinement of enemy soldiers in this country for the duration of hostilities.

    What war? Part of the thing with prisoners of war is that they get to go home after the war is over. But the “war on terror” has no end date, and probably never will have.

    Either you release them, or you are saying it’s okay for the United States government to hold people without charege forever and ever amen.

    Holding them without charge indefinitely would be like saying that drug dealers can be jailed forever without trial until the “war on drugs” is over (which it will never be).

  14. Nothing will promote Liberty as fast as the backlash against the inevitable crushing failure of these policies, and at least then, it will be clear where to lay the blame.

    I used to believe that, domo, but the ratchet only seems to turn one way. If they ram through everything they want, then the odds are it will become a permanent feature of the landscape.

  15. So, Steve, how many of the detainees are you volunteering to adopt into your home?

    There are two kinds of detainee at Gitmo — some are terrorists, and some are merely battlefield captures.

    The ones who were released were NOT considered “innocent,” they were considered to no longer be a threat (primarily battlefield captures) — and it seems that the people who decided that were wrong in a number of cases.

    They should be tried for what they have done, but in MILITARY TRIBUNALS, because they were engaged in warfare.

    The true danger in the noise about Gitmo is that future troops will just decide to avoid the problem altogether by not taking prisoners in the first place.

  16. Holding people as prisoners of war would not make them prisoners of the metaphorical “War on Terror”. They would be prisoners either the Iraq war or the Afghanistan war; both of which are actual concrete military conflicts, even if not declared.

    When one of those wars ends (for example, lets say Obama withdraws from Iraq completely in 2011) the prisoners of the Iraq war would have to be either released or charged with something. This is the case even if the Afghanistan war or some other military operation is going on at the time.

    Also this type of reasoning would not allow having POWs in the “War on Drugs” or “War on Terror” or any other metaphorical war. If it’s not a real military conflict, you can’t have POWs

  17. Thank you to Chapman for quite publicly dismissing the stupid conservative talking point that Bush will redeemed because he “kept us safe”. China keeps it’s people safe from terrorism too. I don’t hear many conservatives congratulating them. The President’s first duty (it’s even in the oath!) is to defend the Constitution, not make sure nobody dies.

  18. I am a big fan of Steve Chapman’s, but he loses some luster when he buys into the GWOT.

    This is not a war, it is a fraud.

    War has never been declared. The world and the country were deceived by Bush & Co. It is well established that most of the detainees were turned in for ransom, but Steve says “we’re at war”, as though that somehow justifies Gitmo.

    Pardon the rant, but when Steve Chapman starts admiring the Emperor’s New Clothes, then the constant mind-bending propaganda of the government has succeeded beyond its wildest dreams.

  19. I agree with the poster, it’s a fraud, not a war. War was not declared, there is no clear definition of who the enemy is, or how he poses a threat.

    Just because a person commits a murder, you don’t declare, a “war on murder”.

    The “war on Terror” has never been more than political theatre.

  20. The trouble with the idea that we shouldn’t release people who are likely to be dangerous if let out on the field, but who cannot actually be convicted of crimes, is that we’re leaving it to the executive to decide what constitutes a danger worthy of being locked up.

    People who were captured during combat I have no problem with, but people who were captured during a raid, detained on, say, “evidence” acquired by torture, that’s sticky. Vagaries like that just beg for abuse. There’s no clear end to the present conflict; we may be in a “war on terror” as long as terrorism by some arbitrary definition exists – which is forever. There is no clearly definied enemy; apparently anyone who opposes the United States and is in some way linked with people who take violent action against it counts. According to some that includes people who download pirated media, potheads, religious fundamentalists, anti-war activists, or if you’re Bill O’Reilly, Sean Hannity or Rush Limbaugh, anyone not a member of the Republican party.

    In light of that, thinking of these people as POWs doesn’t really work. The unchargable and unreleasable detainees are really nothing more than political prisoners. If they’re as dangerous as they’re supposed to be we should be either capturing them in combat or gathering sufficient evidence against them before capturing them out of combat. If the government takes illegal shortcuts, and those shortcuts end up with them having to release people who in turn cost more innocent lives, we have only the government to blame.

    It would be convenient if we could trust them every time they told us “we’re really, really sure this is a bad guy, we just don’t have any proof” – in or out of a wartime situation. Unfortunately we can’t, and we don’t want them to have the power to act as if we can. A government with the power to arbitrarily and indefinitely imprison people it feels are risks to national security is far, far more dangerous than any number of idiots with makeshift bombs living on the opposite side of the planet.

  21. @BG: the trouble with your reasoning is that the people we are capturing in Iraq are not members of any military force. Hypothetically (as in, if they are actually enemy combatants and not falsely accused), they are fighting for an ideological/religious cause, and they are perfectly willing to cross borders. Those who have been trained at all have been trained exactly for that; many of the combatants in Iraq are not Iraqis. If we set them loose after the war in Iraq is over, they are likely to go and fight on whatever new front has developed. That is both a sane and rational justification for detaining actual combatants indefinitely and a really great excuse for indefinitely detaining people who we can’t convict of anything.

    @JGR: No, there are three kinds of people in Gitmo. Terrorists who were captured out of combat, enemy combatants, and innocent (or at least not dangerous) people. Even in a more perfect world, intelligence is not always be 100% accurate. Any agency with any practical limit to knowledge will occasionally accuse the wrong guy or mistake one guy for another.

    Leaving it in the hands of the same group of people to generate the information, act on the information, and evaluate the accuracy and effectiveness of the information (i.e. become judge, jury & executioner) is incredibly dangerous.

  22. Nice article. I also find Obama maddeningly vague, but of course it only bothers me when I disagree with his policy. So far he’s made some nice international moves.

  23. @BG: the trouble with your reasoning is that the people we are capturing in Iraq are not members of any military force. Hypothetically (as in, if they are actually enemy combatants and not falsely accused), they are fighting for an ideological/religious cause, and they are perfectly willing to cross borders. Those who have been trained at all have been trained exactly for that; many of the combatants in Iraq are not Iraqis. If we set them loose after the war in Iraq is over, they are likely to go and fight on whatever new front has developed. That is both a sane and rational justification for detaining actual combatants indefinitely and a really great excuse for indefinitely detaining people who we can’t convict of anything.

    That true about some of them. But some (probably a majority) are Iraqis who formed one of the many semi-organized insurgent groups that sprung up after Saddam was deposed. Those who don’t care about the resurrecting the caliphate or whatever probably won’t go to Afghanistan to fight the coalition after the US leaves Iraq.

    As for the ideological jihadist fighters you mention, those guys would likely want to go to Afghanistan or some other country and make trouble. If they can prove such a person has committed war crimes (targeting civilians, fighting out of uniform, etc) they could try that person for the crime and imprison him if convicted. If you can prove the person has fought against the US in Afghanistan/Pakistan previously, or has a strategic material connection to those who did, then you can get away with saying he is now a POW of that conflict.

    There will probably be some jihadists who are in fact planning on fighting the US in Afghanistan after the Iraq war, but for whom you can’t prove any of that stuff. So they’ll have to release some people who go on to commit acts of terrorism and/or fight against the US elsewhere. That part sucks, but overall I’d say this is the least bad way of doing things.

    When we release ordinary defendants who can’t be convicted, we always take the risk that they might be guilty or they might commit some crime in the future. But that is better than adopting the Minority Report version of criminal justice or giving the state the power to detain arbitrarily. The same logic will apply to POWs after the war for which they are held is over.

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