The Guantanamo internees

I’m confused.

The United States has been attacked by the organization known as al-Qaeda on several occasions, most dramatically on 9-11. It seems to me natural to say that al-Qaeda has been, and still is, “waging war” on the United States. (Yes, wars are usually waged between nations, but I don’t see why that should be regarded as part of the definition of war.)

Prisoners of war are held until the fighting ends, ordinarily with a surrender or peace treaty. They’re entitled to certain privileges under the Geneva Conventions, but those do not include the right to a lawyer or the right to contest their confinement in court. An unlawful combatant, such as a spy or a saboteur or a terrorist, or a member of a group such as al-Qaeda that isn’t an army, isn’t even entitled to that much.

So I’m having a hard time understanding what the problem is supposed to be about our holding al-Qaeda prisoners (captured in Afghanistan or elswhere) at Guantanamo indefinitely without access to counsel.

When it comes to American citizens or those captured on American territory, habeas corpus ought to apply, since we certainly don’t face the “rebellion or invasion” that would justify its suspension. That makes me very uncomfortable about the Padilla case. But I can’t see what happens to the others as anything resembling a problem about civil liberty or the rule of law.

In some cases, there is an obvious distinction between al-Qaeda prisoners and ordinary prisoners of war: a POW is usually captured in uniform or on the battlefield, so the question of whether he is actually an enemy combatant more or less answers itself. If we swoop down on an Afghan valley or a house in the Sudan and capture six people not in uniform and not actually fighting, whom we think are al-Qaeda members, there might be a legitimate question about whether they are, in fact, al-Qaeda members.

Sp perhaps we need a process by which a relatively impartial judge examines the evidence. But I don’t see that as a requirement either of our domestic law or of international law. And I don’t think it has even been charged that the Guantanamo internees are being actively maltreated.

So what, exactly, is the fuss about?

Update A frequent and friendly email correspondent responds with a brief note: “You’re kidding, right?”

Wrong. I’m deadly serious. And I’m waiting for someone to explain to me why my position is incorrect, rather than merely expressing shock that I hold it.

There are (at least) two kinds of people who furiously oppose the Bush Administration. Some oppose it because they disagree with the idea that we’re at war with the political brand of Islamic fundamentalism, or rather disbelieve the notion that the political brand of Islamic fundamentalism is making war on us.

Others, including the undersigned, oppose it (among other excellent reasons) because they think Mr. Bush and his advisers are waging our side of that war fecklessly and irresponsibly: neglecting domestic security, not aggressively pursuing defenses against bioterror including smallpox innoculation, following a reckless fiscal policy that leaves us vulnerable to a currency crisis, following a diplomatic (or rather undiplomatic) course that has divided our friends abroad and united our foes, and waging a scorched-earth politics that divides our country when it most needs to be united.

To say that we’re at war does not imply that action by the unformed armed forces is the most important response. Diplomacy, intelligence-gathering, covert operations, law enforcement (e.g., to identify and sequester the terrorists’s funds) and domstic target-hardening are all likely to be at least equally important.

But to say we’re at war, or rather that war is being waged against us, does mean that we need to act as if we were at war. And that includes holding enemy prisoners until the war ends.

Second update Michael Froomkin makes the point that if we’re fighting “terrorism” the war will never end, almost by definition, since terrorism is always a threat. But in fact we’re not fighting “terrorism,” we’re fighting al-Qaeda. And al-Qaeda could surrender (or disband). So the duration of the captivity of the prisoners depends on the decision of the entity they were fighting for, just as in any other war.

Third update Brian at Crooked Timber disagrees, and is especially concerned about the factual question of who among the captives is actually a member of al-Qaeda. I agree with him in regretting that the Executive Branch is currently in the hands of some untrustworthy characters, and I hope that situation will change next January. But I can’t get away from the thought that identifying enemy combatants is an executive, rather than a judicial, function.

Being a member of al-Qaeda doesn’t in itself constitute a crime, but it does constitute sufficient reason to keep someone locked up until al-Qaeda stops being a threat to the United States. So what do the critics of the current policy propose to do with al-Qaeda members now held at Guantanamo who can’t be shown beyond reasonable doubt to be guilty of some specific crime? Just turn them loose?

And if we’re not going to turn the “innocent” loose, what’s the purpose of holding a trial?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

4 thoughts on “The Guantanamo internees”

  1. Guantanamo

    Mark Kleiman asks a question about the internees at Guantanamo. I had planned to write about this myself, but got caught up trying to get this blog going. He points out that al-Qaeda is waging war on the U.S. So

  2. Guantanamo, again

    I noticed that Mark Kleiman has an update to his post about Guantanamo internees. Again, he asks a most credible question,So what do the critics of the current policy propose to do with al-Qaeda members now held at Guantanamo who

  3. Changing the Guantanamo Game Rules

    Kleiman (via and contra Crooked Timber) is having "…a hard time understanding what the problem is supposed to be about our holding al-Qaeda prisoners (captured in Afghanistan or elswhere) at Guantanamo indefinitely without access to counsel." His for…

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