July 1, 2006 | Commentary on National Security and Defense
Legal scholars will be wrangling for some time over the Supreme Court's questionable split ruling that declared unconstitutional the military tribunals the United States planned to use at Guantánamo Bay. Whatever the legal merits of the decision, here's what we can say for sure:
The decision helps
nobody, not even the terrorists.
First, some background. After the invasion of Afghanistan, the United States established a detention facility at the Marine base in Guantánamo Bay, Cuba, to detain unlawful combatants - enemies picked up on the battlefield and other places who did not qualify as traditional prisoners of war under the Geneva Conventions.
The administration created the camp to make everybody safe. Isolating dangerous people in modern facilities ensured that the soldiers guarding them were safe from the prisoners and anyone that might try to free them. The prisoners were safer because they could be properly cared for, rather than being left in a Third World jail or turned over to legal systems that might summarily execute or torture them as a matter of convenience. The prisoners' lawyers would be safer because they could see their clients without flying halfway around the world into a war zone.
The only problem with the whole idea was figuring out what to do with the prisoners over the long term. The government decided on using military tribunals to see if further detention was warranted or if the prisoners could be safely released. Now, that isn't going to happen. Everybody loses.
The prisoners lose because a process that could have adjudicated their status has been struck down by the court. They will just sit in Cuba longer. That's because the decision did not call into question the legitimacy of the camp or the government's right to detain unlawful combatants.
The administration's critics lose. Cries to close Guantánamo, especially shrill from Europe these days, will no doubt get even shriller. While critics may feel emboldened by the decision, they shouldn't be. The court did not order the government to release anyone, and odds are the government won't.
The critics, however, will no doubt just keep on harping, which is a useless exercise. They will continue to lose out on an opportunity to do something really useful - work with the United States to develop appropriate means to capture, detain and punish suspected terrorists who seek to find a shadow land where they can kill and maim with impunity beyond the reach of the law enforcement and judiciary we use to deal with everyday crimes.
The government loses because it has invested three years in developing a fair procedure that both safeguards the national security interests of the United States and humanely dispenses justice. It will have to start over to come up with a process the Supreme Court can accept.
Realizing that very little will change in Guantánamo as a result of the court, we need to ask where we go from here. That's simple:
We should recognize that we can't solve the problem by wishing it away. The battlefield of transnational terrorists is, essentially, everywhere, and we have to have practical means to find them and imprison them.
We can't treat unlawful combatants as regular criminals or traditional prisoners of war. That simply rewards individuals for breaking the rules of the civilized world.
We are going to have to come up with a long-term solution for adjudicating the status of the detainees that satisfies both U.S. national security interests and the rule of law.
The Supreme Court put the fate of the Guantánamo detainees back to square one. Let's hope the government's next attempt to get to square two is a step in the right direction.
James Carafano is a senior research fellow for defense and homeland security at The Heritage Foundation and coauthor of "Winning the Long War: Lessons From the Cold War for Defeating Terrorism and Preserving Freedom".