Guantanamo--The Solution

by Richard Crews

Guantanamo presents a problem--a pickle--a quagmire--a can of worms--a dilemma wrapped up in an enigma. But there is a solution.

After 9/11, President Bush declared that we were in a "war" on terrorism. It wasn't a war in any traditional sense--there were no uniformed troops arrayed against us; no battle lines; no national (or even ethnic) confrontations. But calling a severe national problem a "war" had gotten into our blood--there was the "war on drugs" and on AIDS and even on racism, ageism, sexism, etc. Moreover a U.S. president at "war" has special, additional powers; historically during times of war Lincoln, Wilson, and FDR all suspended habeas corpus and other civil rights that are sacrosanct--that are morally utterly inviolate according to our United States founding documents and civilized principles--except in the extreme circumstances of war.

So President Bush declared "war on terrorism." One is tempted to think that this was in order to expand his Draconian powers; at any rate, it contributed to that result.

In Afghanistan (also in Iraq and elsewhere, but mainly in Afghanistan), the military forces took prisoners--as military forces do. But they were not "prisoners of war" protected by the Geneva Conventions--they didn't wear uniforms, carry weapons openly, or swear allegiance to a nation (which are the criteria carefully defined in the Geneva Conventions). They certainly were not (for the most part) U.S. citizens with the civil rights guaranteed with that status. Moreover, they were not on U.S. ground; a special facility was set up at Guantanamo Bay in Cuba on ground which was leased by the U.S. government but was definitely (legally) not U.S. soil.

In legal limbo they were--not subject to U.S. civilian or military law, nor international law. And there they could be kept--as far as the president was concerned--without being charged or tried for a crime--indefinitely. So there they stayed--year after year after year.

Moreover, they were thought to have information about the next 9/11 attack being planned on the United States. Information that, if wrung out of them, might save American lives. So they were tortured--they were told that their families were dead and their homelands had been destroyed by atom bombs; they were kept for months in solitary confinement in tiny cells (sometimes even for days in coffin-like boxes deprived of air and light), naked in freezing temperatures, beaten, dragged around by a rope around the neck, shackled and kept standing for days on end, deprived of sleep and food, subjected to water-boarding, and interrogated for as much as 18 and 20 hours a day. This was despite the expert psychological knowledge that useful information cannot be gained from torture (the victim will say anything)--and the legal fact that any confession or evidence obtained by torture cannot be used in court.

And what, ultimately, could be done with them? Their legal limbo became increasingly complex. They couldn't be tried for a crime because in many cases there was no good evidence against them--and what evidence there might be was too secret--too classified--to be revealed, or else it was tainted by torture. And they couldn't be released--if they did not hate the U.S when they arrived at Guantanamo, they surely did after they had been kept there for a while.

I watched several scholarly legal debates on TV about Guantanamo. It came through clearly to me that there is no reasonable resolution--except one. And it is a curious one. Apparently if the death-penalty option is "taken off the table," the legal and hence administrative resolution becomes simple.

I heard clearly that this is so. I do not understand why--I am not enough of a legal scholar. Perhaps you can explain this to me.