Wednesday, January 28, 2009

What to do With Gitmo

by Robert L. Gisel

(This blog is dedicated to resolutions in man's inhumanity to man, in the Universal Declaration of Human Rights as not simply a pronunciation of the UN but as a powerful tool to resolve differences between and within all nations, to create a new era of compassionate and effective international diplomacy.)

The new President has been left the burden of what to do now about the Guantanamo Bay Terrorist Detainees. It was a false and unworkable solution from it's outset, so trying to put it to rights now is difficult and complicated, to say the least.

On the international scene the handling of violations of the Geneva Convention and the handling of war criminals and crimes against humanity is the province of the Hague and the United Nations. In 2002 the UN further set up extended justice handling with its International Criminal Court.

At home we have our Judicial System for prosecuting common criminals, whether it be Murder One, serial murderers, mass murderers or mob executions. Regardless of the atrocity of a crime, the system works to the degree it is kept honest, doesn't trammel individual rights and is swift justice. Continued departures from fair and just treatment sends tremors across the land that will fester to one day erupt in civil rebellion.

The statements of Bush regarding the need to protect American soil and citizens overshadowed his unverbalized statement that the UN didn't provide the protection. At the same time he withdrew faith and was undermining confidence in the UN, withholding cooperation and support. Espousing claims of ineffectiveness while doing the things that seriously hamper effectiveness is a poor show.

Gitmo was an attempt to establish a new category, "terrorist", with a side-pocket for handling these as unlawful enemy combatants. As such it has been more unworkable than pragmatic. It was, in effect, the establishment of war concentration camps where there was no declared war and the not-uniformed "prisoners of war" are not even clearly guilty of the accusations.

The use of torture and other Geneva Convention violations crosses over into acts that could be criminally prosecuted as sure as the criminal acts of the detainees. Without a doubt this has compromised the US image in the world and plagues the jurisprudence required to resolve the situation terminatedly. The proponents of Gitmo are now forced to attempt to save face and prevent accusations against themselves.

After nearly 8 years of containment, without the usual rights granted, no legal representation, no fair and swift trial nor due process, the remaining detainees fall between the chairs, possibly evil perpetrators, but nevertheless victims of an unusual and unworkable solution. This so far compromises a fair judicial handling that to attempt to try them in the courts of the Land of the Free now is doomed to failure.

One suspects that there was no substantial case against most of the detainees to begin with, or any potential evidence has been withheld by the intelligence agencies to guard state secrets and not compromise covert operatives. In truth, the purpose of Intelligence is not singularly covert operations, with its tools of delay, deception, detection and counter-espionage. It should be able to document and present evidence for actual prosecutions without jeopardizing the operations networks. Even if it involves playing a "Deep Throat" role to feed information that can be substantiated by an Attorney General or Criminal Investigator, justice can enacted. Hard evidence is still the determining factor, not belief or planted falsehoods.

The Gitmo scene is too long divergent from decency to afford a positive press, hoping to glorify this as a PR or diplomatic statement against our enemies in terrorist groups or the sympathetic sovereign ties. It's only bad press. The world is listening and watching.

Where there is sufficient evidence to try any of the remaining detainees this should done, but not by the US Court System. It should be done as a UN action by their International Criminal Court. The virtue of allowing the UN to mediate would restore some degree of the national symbolism embodied by the Statue of Liberty.

With the rest, where the evidence is lacking or compromised by abusive treatment of the prisoners, the US will have to eat crow and let them go free, probably back to the country in which they were seized. The detainee released to Saudi Arabia, who released him only to go back to leadership in the Al Qaida, was a bitter lesson. An amnesty can be given those released with the proviso that any returning to criminal activity in the Al Qaida or terrorist camps will be again incarcerated and given twice the penalties, or even immediate death sentence where proven without a doubt engagement in new terrorist acts.

It should have been handled right in the first place. Setting this to rights now will not be to everyone's satisfaction no matter how it is handled. Putting it back in its proper place in principle will have the least ramifications.


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