July 1, 2006
By James Jay Carafano, Ph.D.
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
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
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
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
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
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.
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
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.
James Jay Carafano, Ph.D.
Vice President, Foreign and Defense Policy Studies, E. W. Richardson Fellow, and Director
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