In light of Obama’s and Cheney’s recent speeches, and in light of Congress refusing to fund the closing of Guantanamo, I feel compelled to write about this topic. I do not normally write my own diaries. I am normally content to merely comment on the diaries of others, and hope that I am making some kind of contribution. However, on this topic I can no longer remain silent. As many of us know, Guantanamo is a stain on the US, both in our international reputation and our own national psyche. Closing Guantanamo, and ensuring that each individual imprisoned receives a free and fair trial, is something that we must do.
In light of Obama’s and Cheney’s recent speeches, and in light of Congress refusing to fund the closing of Guantanamo, I feel compelled to write about this topic. I do not normally write my own diaries. I am normally content to merely comment on the diaries of others, and hope that I am making some kind of contribution. However, on this topic I can no longer remain silent. As many of us know, Guantanamo is a stain on the US, both in our international reputation and our own national psyche. Closing Guantanamo, and ensuring that each individual imprisoned receives a free and fair trial, is something that we must do.
Currently, we have a couple of hundred men housed at the military prison. Before any discussion regarding their fate can occur, we must look at how these men came to be at Guantanamo. Many were kidnapped in foreign, via a program called "extraordinary rendition." Others were taken from a battlefield, and ended up at Guantanamo by way of various military prisons around the world. To my knowledge, none of these men were picked up in the United States. Currently, most inmates are in a state of legal limbo. Many do not know what they are charged with, when they will be charged, and when they will get a trial.
The US’s treatment of these inmates is, in my opinion, a grave violation of international law. First, we have basically kidnapped men on the mere suspicion that they are terrorists. In most cases, we did not ask for an extradition; if these men violated a US law in the US we should have asked that they be extradited to the US in order to stand trial. To my knowledge, we did not ask for any extradition, and instead went outside the boundaries of international protocol, tradition, and law, and kidnapped these suspects. Other men were picked up in a battlefield, possible tortured, and sent on to Guantanamo on the suspicion that they were a danger to the US. Currently, many inmates have not been charged with a crime, nor were they ever arrested, nor charged with any crime.
Our political leaders are currently discussing the fate of these men. The options our leaders are considering are: indefinite detention without a trial, trial in a US court, or trial in a US military tribunal. None of these are places where these men should be tried. Let’s look at each option a little more.
Indefinite detention without a trial is what some Republicans are arguing for. This is a violation of international law. Specifically, it is a violation of the International Covenant on Civil and Political Rights. Since these men are not, and were not, in any formal military, they are by definition civilians. Criminal behavior or not, they are still civilians. Each and every inmate has a right to the rule of law, the right to a trial, a right to a lawyer, and a right to an impartial jury. Period. Holding anyone without a trial is not only immoral, it is also illegal. Indefinite detention should not be an option. Let’s move onto the next option under discussion.
A criminal trial in the US is what some Democrats are pushing for. This may work for some suspects, notably the ones accused of the embassy bombings of the 1990s. Since an US embassy is technically US soil, we can try anyone who actually bombed the embassies. However, what do we do with the plotters? They did not commit an American crime on American soil. Do we have the legal right to try them? I do not really know the answer to this question, but I would suspect that we do not have this right. I am aware that I may be completely wrong on this point.
For others, notably the suspects picked up in Afghanistan and Iraq, they committed no crime in the US, and therefore cannot be tried in the US criminal courts. How can we try a foreign national for a crime that was not committed in the US, but committed in a foreign nation? To my knowledge, we have no legal jurisdiction. For example, if a person is to be charged with planting a roadside bomb in Iraq with the express intent to harm US soldiers, we have no jurisdiction in the US; the case must be tried in Iraq.
Even if we do have a right to try any of these suspects in a US criminal court, how will we ever find an impartial jury? I fear that most of these suspects are already presumed to be guilty. If they are tried in the US criminal courts, they have a right to the presumption of innocence. I doubt that we in the US would be able to guarantee this presumption of innocence. This is a little beside the point, but bears thinking about. All in all, a criminal trial may have some utility, but trying foreign nationals in the US for crimes committed in a foreign nation smacks of imperialism to me. I find this option distasteful in the extreme.
A military tribunal is the last option, and is fundamentally flawed. I admit, I have very little knowledge of military tribunals, but this seems inherently wrong to me. First, there is no appeal from any decision made by a tribunal. This is abhorrent to me. All courts make mistakes. There should be some way to appeal a decision, in case of a flawed decision. Second, the trials will likely be closed, and all evidence be classified. As such, we will have no way of knowing if any trial is free and fair, and will have to trust our government. Given our government’s recent treatment of inmates, I do not trust that tribunals will be free and fair. I also have serious doubts about any evidence used against these defendants. Was any evidence obtained through torture, and how can we ensure that such evidence isn’t used against a person? If the courtrooms are closed, and I believe that they will be, we have no way of ensuring this.
I find all the alternatives being discussed by our leaders to be lacking. In my opinion, there is a better solution. We have to have some kind of international court to try any suspected terrorist. If these men have committed a crime, and right now they are merely suspected of having done so, they must be tried in some court. The individuals held at Guantanamo are suspected of plotting against the US. They are non-state actors that are plotting against a state, potentially in violation of international law. As such, any trial that occurs should happen in an international forum, not a national one. There are two ways to deal with this situation. We can try the suspects in an international court, such as the ICC, if we believe them to be international criminals. Alternatively, if they are war criminals, we can establish an international war crimes tribunal.
Fundamentally, I do not believe that we as a nation have the right to try a foreign national unless the foreign national has committed a crime on US territory. This is an international issue, and must be treated as one. If we do try any Guantanamo inmate in the US, either in a criminal court or in a military tribunal, we are setting a very, very dangerous precedent. We are basically making the argument that these suspects are a danger to the US government. That’s a problem. Our government is also arguing that the US has the right to try any individual who is a threat to the US, regardless of the nationality of that individual and regardless of the location of that individual. We do not have this right. We have no right to imprison an individual for plotting against the US unless or until the individual commits a crime on US soil. I do not believe that any nation has this right. If we have this right in the US, so do other nations. If this is true, what is stopping a nation such as Iran from sending a small task force into the US and secretly arresting anyone plotting to overthrow the current regime?
I want to make one more thing clear. I do not believe that we are imprisoning any of the perpetrators of 9/11, and that few of the inmates at Guantanamo had anything to do with the USS Cole bombings or the embassy bombings of the 1990s. The reason I do not believe this is because if we did have individuals responsible for these plots, our government would have heavily publicized this information, as they did with the capture of KSM. Since these crimes happened on US soil, we have the right to try those responsible for these crimes.
In establishing Guantanamo, and the resulting perverted justice, the US is actively undermining the entire international system. Any trials held by the US are going to be tainted. If these men at Guantanamo are international criminals, they must be tried in the international arena. If they are war criminals, they must be tried in an international war crimes tribunal. Furthermore, our reputation abroad will suffer even more, and we will be known as people who advocate against the rule of law. It’s bad enough that we are going to be known as people who condone torture.
We must work to improve our reputation abroad. We are already believed to be torturers. In the Middle East and Latin America, we are known for propping up corrupt regimes that torture and kill their own citizens. I believe that advocating for an international court to try terrorist suspects would go a long way to showing the world that we are serious about our commitment to the rule of law. It is in our best interest to ensure that these men are tried in an international forum.
I end this with an apology. I am sorry that this is so disjointed, long, and ineloquent. I feel very passionately about this subject, and have a tendency to become inarticulate when I feel strongly about a topic.