by John K. Atsalis | A complicated and dangerous undertaking.
Last week’s news was full of breathless reports on the actions of the nascent Obama administration. Dana Priest, of the Washington Post, heralded President Barack Obama’s executive orders regarding the detention facility at Guantanamo Bay as the “end to the ‘war on terror’ as President George W. Bush had defined it.” Human rights groups and liberals rejoiced at the rolling back of Bush-era interrogative techniques and a halt to military tribunals. Yet, among all the fanfare, there is cause for pause. Complications concerning the repatriation of detainees may take longer than the one-year deadline Obama set to close the island prison.
The Bush Administration has been rightly criticized for citing the unprecedented nature of the War on Terror as rationale for the indefinite detention of detainees and for holding them incommunicado as enemy combatants. Both the letter and the spirit of American law grants those held by the US government right to a trial and to an attorney, as well as the expectation of a speedy judicial process. As such, detainees who can be brought to justice must be, while those who can be released should be. If they cannot be returned to their home countries, Europe and other nations who have called for the closure of Gitmo must step up to the plate and resettle these detainees.
The facilities at Gitmo have become synonymous with so-called “black sites” and extraordinary rendition, a practice by which the CIA allegedly kidnapped and illegally transported detainees to countries where a proxy could torture them. After the Washington Post publicized these black sites in 2005, the CIA transported 14 “high-value detainees” to Gitmo and, assumedly, the program of extraordinary rendition was suspended or curtailed. On January 23, President Obama ended this practice with an executive order. He also emphasized the illegality of torture and mandated increased cooperation with the International Red Cross. These actions are commendable, as they seek to rein in the CIA and prevent further clandestine abductions and torture. No matter the circumstances, it is decidedly un-American to abduct and detain persons without a warrant or just cause. Yet, many of the Gitmo detainees were not abducted and transported via black sites.
The detainees have been labeled as “illegal enemy combatants” due to the fact that many of the over 770 prisoners were captured on the battlefield in Afghanistan since 2002. Since they did not fight for a state, but rather for the Taliban, the US chose not to classify them as combatants eligible for Prisoner of War status. Some of the prisoners range from upper-echelon members of Al-Qaeda to jihadists captured in military actions against the United States. Over 400 were released in 2005 due to public pressure and when it became apparent that many of the detainees were relatively harmless. However, not all detainees that have been cleared have been repatriated to their home nations.
About 50 of the detainees cleared for release cannot be deported to their home countries because they may be harmed by their home country. An example of this situation is the Uyghur detainees, who cannot be sent back to their homes in the Xinjiang Province of China since Chinese authorities consider them terrorists. In addition, about a hundred of the remaining detainees are Yemeni and US officials fear that releasing them without establishing a rehabilitation program with the Yemeni government would cause these detainees to rejoin the War on Terror. Such a program exists in Saudi Arabia, and Saudi Arabia claims “no graduate its program has returned to terrorism.”
Recent reports, however, have shown that some released detainees have returned to resisting the War on Terror. Said Ali al-Shihri was released to Saudi Arabia in 2007 and is now the deputy chief of Al-Qaeda in Yemen. He is believed to be involved in the bombings of the United States Embassy in Yemen this past fall. This example of a detainee returning to battle should make Obama cautious as he moves to shut down Gitmo. He is right to address the unconstitutionality of indefinite detention of detainees at Guantanamo Bay, yet he must be sure to prevent the release of detainees intent on causing terror. Most importantly, the US must determine how to treat terrorists captured in the future.
The Obama White House must decide how to treat stateless terrorists that are captured. Individuals who seek to kill innocents, as well as military personnel, through suicide and ambush do not follow the laws of war. Perhaps this brought the Bush White House to the conclusion that jihadists should not be treated as POWs. Obama must now define what a terrorist is and what his or her rights are. Terrorists are people who deserve their day in court; yet, America must be cognizant that these jihadists are not simply murderers brought to trial on Law & Order. Trials will involve classified material not fit for public consumption and evidence that is not from the world of CSI. There will be prisoners unwilling to participate in the judicial process or prisoners who seek martyrdom through the death penalty. These men are in a perpetual state of war against our nation and its ideals and just because we gave them quarter in battle does not mean they would have done the same.
Mr. Atsalis is a sophomore majoring in Quantitative Economics.