The first practical question is where to transfer Khalid Sheikh Mohammed and the 245 or so other remaining Gitmo prisoners. Dangerous enemy combatants can’t simply be released into the streets. The Obama camp says that after reviewing the classified files, it will try to repatriate as many as safely possible. But 60 already cleared for release remain because they may be persecuted by their home countries. And even Mr. Obama’s vaunted diplomacy is unlikely to convince rights-protecting countries to resettle people he believes are too dangerous to release in the U.S. — and the more willing Mr. Obama is to release prisoners, the more difficult this problem will become.
One suggestion is moving the remaining prisoners to Kansas’s Fort Leavenworth, but state politicians are already sounding a red alert. The military base is integrated into the community and, lacking Guantanamo’s isolation and defense capacities, would instantly become a potential terror target. Expect similar protests from other states that are involuntarily entered in this sweepstakes.
The first question that comes to mind is: why go through all of this? Ah, but Guantamano has such a bad reputation. Yet it is largely based on misinformation about the actual treatment of detainees there. Supposedly we must put these very same people somewhere but we just don’t want to keep them at Guantanamo. At some level then we are inflating a PR problem — one which can be alleviated by creative people (rename the facility? build a new one in the parking lot?) — into a giant political and national security problem, especially for people living in the unlucky states that will play host to these very dangerous people.
If the Republicans are looking for a good issue, here is one: promise to filibuster (with the help of Democrats from affected states) any attempt (and the required funding) to put terror suspects within the confines of the U.S. Why should Democrats’ acute sensitivity about world opinion (emanating from that bastion of human rights, the UN) take priority over the peace of mind of our own citizens? It is baffling.
And of course this ducks the real issue: what legal system we are going to use to process and evaluate the detainees. The Obama team apparently would like to reinvent the wheel, but not really:
An alternative to military commissions that is gaining political traction is the idea of a national security court, composed of Article III judges to supervise detentions and administer trials. There are real risks here. Politically, it will cost time and capital that Mr. Obama probably prefers to spend elsewhere. Practically, any new system is likely to face the same legal challenges from the white-shoe lawyers at Shearman and Sterling and anti-antiterror activists that for years tied down military commissions.
But legal experts across the political spectrum including Harvard’s Jack Goldsmith, the Brookings Institution’s Ben Wittes and Georgetown’s Neal Katyal advance this option as a way to restore “credibility” to the detainee process. The national security court would operate under rules of evidence and classification that would allow the military to avoid compromising intelligence sources and methods, as well as admit intelligence gathered under battlefield conditions.
Then again, such rules would be almost identical to those now used in . . . George Bush’s military commissions. On wiretaps, interrogations and now Gitmo, the new Administration is discovering that the left-wing attack lines against Bush policies are mostly simplistic illusions. Now those critics are Mr. Obama’s problem.
So in the end we’d have essentially the same legal system, extremely dangerous prisoners on U.S. soil, and the same complaints from the civil liberties lobby. This is a peculiar type of change indeed, one attuned to the elusive and subjective feelings of “world opinion,” and the liberal attorneys now populating the Justice Department. But in this new moral equation we actually don’t treat the detainees any differently. We just move them. (I can only imagine what it will do for housing prices in those locales.) There is an exquisite degree of hypocrisy at work and a lack of appreciation for what really matters — the safety of our own citizens.
Let’s hope that on further reflection the Obama team comes to the conclusion that the Bush administration’s approach to these issues are better than the alternatives.