To make darn sure that this decision would receive maximum attention over time, the Cheney-Bush neocon ninnies surrounded the initial ungrounded in reality decision with the barbed wire and bars of Gitmo. In a companion move, the administration authorised the military to create a less visible form of Gitmo at the Bagram base in Afghanistan.
Now the Obama administration and the president himself are in the crossfire between those who decry the very idea of indefinite detention without all the customary formalities provided by the American criminal justice system and those who are certain that any person once dubbed an enemy combatant will be a terrorist forever more. Whipsawed between these two camps of the hyperventilating, it is small wonder that President Obama is searching for a solution less complex than the health care reform proposal.
It is not as if the US has never faced the conundrum of dealing with individuals captured in active combat against American forces in the field who were not the military personnel of state actors. Admittedly, the vast majority of wars waged by the US have been fought against nation-states. It was easy to deal with battlefield captives: Put them behind barbed wire until the war was over and then ship them home.
But, say the apologists for the Cheney-Bush conduct of the Global War on Terror, the folks our troops capture are not the lawful personnel of a state. They are the (unlawful) members of non-state groups waging asymmetrical war against the United States. So, the US has no choice besides holding them in durance-not-at-all-vile in perpetuity or at least until each individual can prove that not only is he not guilty of any crime under US law but also that he no longer represents a danger to the US, its troops or citizens or the those of any other allied state.
Had the laddybucks of the Cheney-Bush team not been so busy in the making of history, they would have discovered without more than the slightest effort that the US government had dealt with (unlawful) enemy combatants before. The most recent taking and holding in preventative detention of (unlawful) enemy combatants came just over a century before the troops toppled Omar in Afghanistan.
The main figure in this episode was the Apache war leader Geronimo. This legendary figure was born near Turkey Creek in what is now New Mexico near where several of the Geek's own ancestors also first saw the light of what would soon be the White Man's land but was then their own quite private turf.
Eighty years later in 1909 Geronimo died in captivity at Fort Sill where he and others taken with him nearly twenty years earlier were being "detained" as that day's version of (unlawful) enemy combatants. Geronimo and his associates had, it is true, spread terror across southwest New Mexico, southeast Arizona, and a swath of Mexico. They killed civilians as well as soldiers in both the US and Mexico. They dragged large American forces on one fruitless chase after another until finally taken prisoner under circumstances, terms, and conditions which are still hazy and hotly debated by historians.
The upshot was that Geronimo and the others taken with him were hauled off to Florida where they died in large numbers from endemic disease as well as the impact of a climate to which even the robust Apache were not accustomed. Later, for reasons which are unclear, some of the Apache were allowed to go to the reservation in Arizona, but Geronimo and some others were transported to Fort Sill and never allowed to go home--even to die.
To say that the continued captivity of Geronimo was unjustifiable as he passed his seventieth birthday is to belabor the obvious. Age and decrepitude as well as the rapid changes in the old Apache ranges of New Mexico and Arizona combined to make the man and his followers completely nonthreatening.
The captivity, the "detention" of these Apaches, passed any legitimate consideration of national security and entered the foul realm of vengeance. The same phenomenon resides explicitly in the Cheney-Bush approach to POWs captured in the Global War On Terror.
Arguably, the US would be in its rights if it held individuals captured on the battlefield, those taken "in arms" against the US or its allies as prisoners of war, according to the requirements of the Geneva Convention. While it is true that these individuals were not in the service of a state actor and, it must be noted, the Geneva Convention did not consider the possibility of non-state actors engaged in war other than resistance forces directing their efforts against an invading or occupying power, this oversight does not enervate the capacity of the Convention's clauses to be extended to al-Qaeda, Taliban, or other groups' members.
This approach implies that the captives might be held until such time as the US declares the war to be over. And, this might never happen. In which case the prisoners of this sort of war would be facing the very real prospect of life long captivity.
As an alternative the US could consider the case of each individual taken "in arms" in order to determine on an individual basis as to whether or not the individual continued to represent a threat to the US, its citizens and troops. If found to be free of sinister impulses, the individual would then be released to his country of origin or initial capture.
The problem--and it is a very real one--is that of determining future intent and capacity. The situation is analogous to that of preventative detention as applied to sex offenders. Current federal law as is the case with many states permits the continued detention of sexual offenders after their criminal sentence has been completed. The reasoning is the protection of society against future possible depredations outweighs the individual's right to freedom.
In principle this balancing act may be correct. In practice, given the difficulty, not to say impossibility, of accurately predicting the future behavior of an individual means case by case travesties will necessarily be committed.
If the psychology of sex offenders admits of little predictive certainty, how much more is this the case with (unlawful) enemy combatants? If Uncle Sam is going to place his finger on the scale so as to maximise the safety and security of Americans, very few POWs will be released, even, like Geronimo, in their dotage.
Recently released Pentagon findings indicate that the screening and release process to date has been far from leakproof. A small percentage of individuals released from Gitmo or Bagram or the assorted POW cages in Iraq have returned to battle. Corpses, documents and verified testimony have shown that more than one in ten of those released return to active combat against the US and its allies.
The most recent proposal to have been floated contemplates a form of preventative detention involving judicial review by a special court first after fourteen days in captivity and then at six month intervals. The prime author of this proposal, Benjamin Wittes, is a well-known and respected student of matters connected with terror and responses thereto. His work is solid, very solid.
But, the proposal suffers from all of the deficiencies associated with preventative detention procedures generally. The recurrent judicial evaluations must be based upon prognostication as to the danger represented by the release of the individual. In addition, the possibility that the process will be polluted by the understandable, all-too-human desire for vengeance against the perpetrator of putatively dastardly acts must be factored in. That which happened to Geronimo can happen--no--will happen again.
The first duty of a government is to protect its citizens against threats of foreign origin. It is that reason which compels erring on the side of caution when it comes to the release of POWs taken in a war against non-state actors. The human rights activists typified by Human Rights First's capo Elisa Massimino must realise this brutal reality.
Al-Qaeda, Taliban and the other Islamist jihadist entities started the current very, very long war. As they are non-state actors (and hopefully will stay that way) only the US and its allies can bring the war to an end. Until and unless that happens members of these groups taken "in arms" must be held in Geneva Convention agreeable captivity.
Those captives who have committed a crime under federal law can and should face trial. This facing of justice must take place with all the customary features afforded by the Federal Courts. If convicted of discrete crimes, these individuals must be incarcerated according to the provisions of the relevant statutes under which they have been charged and convicted. Upon the completion of their sentence these people along with any detainees not charged with a Federal offense must be detained until either the end of hostilities or a clear finding that the individual no longer represented a threat.
The Geek agrees with those who find preventative detention distasteful. The proliferation of laws allowing or even requiring detention after the completion of criminal sentences applied to sex offenders bothers the Geek as it is so easy to err against the individual in the interests, real or alleged, of safety.
The same is true with respect to (unlawful) enemy combatants. As the case of Geronimo shows the introduction of vengeance is too easy. The prediction of future behavior is too uncertain to permit of an easy conscience when the situation of POWs in this new and brutal form of war is contemplated.
However, when all relevant factors are considered, the need of the US government to protect the lives and property of its citizens overwhelms any presumed harm caused the individual by his having made the choice to take up arms against us. The Obama administration realises this and is willing to take the heat from those who are overly bothered by the necessary consequences of taking effective action on the behalf of We the People.
If his choice results in his spending decades, perhaps his entire life, behind barbed wire, that is unfortunate. But, he made the choice.
Such can be the will of Allah.
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