For almost four years, Americans collectively have ho-hummed news about the prisoners caged at the US Naval Base at Guantanamo Bay, Cuba (GTMO). Torture? Big deal. Hunger strike? What hunger strike? — most people don’t even know about it. So it’s no surprise that Americans don’t care that the tribunals that determine whether the prisoners are “enemy combatants,” and the tribunals that will try some of them for particular crimes, all deny prisoners the full set of procedural rights that US and international law offer.
Americans’ indifference comes in large part because the arguments that denying process to “enemy combatants” is bad policy and illegal have failed to appeal to the public’s self-interest.
For example, most of the policy arguments against this lack of process have been the following: (1) Giving process to these prisoners is just the right thing to do morally. (2) Our failure to do so shows we’re hypocritical. US leaders have been extolling American democracy over other forms of government because it purportedly preserves individual rights and freedoms; the separate-and-unequal justice system at GTMO undercuts such claims. (3) Our denying process to these prisoners will cause other countries to deny process to our soldiers if they are captured. (4) We should accord process because one of us might be jailed by mistake, and we would like fair process to protect us.
These arguments are all valid. However, the problem is that they are either sentimental or unrealistic–and most Americans sense that. Americans like thinking they’re the world’s nicest, most democratic people, but they’ll abandon that warm and fuzzy feeling if being nice and democratic will increase their risk of being blown up by terrorists. Americans don’t worry about being hypocrites, because “everything changed” after 9/11; we’re fighting a “different kind of war,” and history will judge us as prudent, they believe. Most Americans know that our soldiers probably won’t be captured: enemies are barely able to kill our troops, much less capture them. And as we saw with Jessica Lynch, we can just go rescue them anyway. Moreover, what country would dare mistreat US troops and incur our (perhaps nuclear-tipped) wrath? As for the classic argument that we need rigorous legal process in case we’re arrested by mistake, well, most Americans know that it’s highly unlikely they themselves will ever be caged at GTMO: most Americans aren’t radical Muslims.
The legal arguments against GTMO (that the US is violating US and/or international law) haven’t interested the public, either. The arguments are too technical, and the number and length of court opinions, of differing opinions by judges, and the number of scholarly articles and op eds on this issue let Americans think the arguments on both sides are plausible. There has been no sweeping, landmark Supreme Court decision thoroughly vindicating one side or the other. Instead, courts are considering whether the US can, legally, deny a certain level of process in general; whether specific processes are permissible; and which procedural safeguards, if any, are required. Every lower court ruling will be appealed to the Supreme Court, and the meaning of the Supreme Court’s decisions will be debated in subsequent cases. Settling this area of law will take years. Ultimately, it’s not clear to most Americans that the US isn’t following the law at GTMO. Indeed, if torture seems justifiable, then denying various courtroom procedures can seem justifiable, too.
The argument that the US should “follow the law” (and set an example for the rest of the world) is sentimental, too. Our leaders can act with impunity. No one can stop the US from doing whatever it wants to do, and why lead by example when we can force other countries to do what we want them to do?
GTMO appears to reflect what most Americans want: to be safe from terrorism. Most Americans believe that the lax rules for GTMO tribunals are necessary to convict terrorists. If we used our regular court system, the terrorists would not be convicted, because the evidence we have against them doesn’t meet the necessary high standards. If a terrorist walks free, he’s a ticking time bomb.
The survival instinct trumps sentimentality.
But the belief that lax court rules can protect the public from terrorism is wrong. The most powerful argument for giving prisoners at GTMO more legal process is that the weak rules there now can’t protect us from terrorism. Weak standards cannot help us determine, reliably, if the people we’ve locked up or released are the right people, because the rules rely on notoriously unreliable forms of evidence: hearsay, coerced confessions, and evidence kept secret from the accused. Garbage in, garbage out.
Also, the lax rules give no incentive to the FBI, CIA, military, and police to conduct serious investigations. Why bother, when they can “win” a case at the tribunal by pounding a “confession” out of a prisoner? In this way, we’ll fail to develop the anti-terrorism investigative abilities we need to thwart terrorism. As time goes by, we’ll become weaker rather than stronger; like unused muscles, our skills will atrophy. In a few years, we might lack any meaningful anti-terror investigative abilities at all. We might merely have goon squads who beat “confessions” out of people.
We can reverse this slide by requiring that terrorists be tried under rigorous rules of evidence and criminal procedures. That would cause our police and intelligence officials to work harder to investigate, to get solid evidence. Much would be learned about terrorists and their networks. We could also be more confident that the people released were not dangerous. (I discuss these benefits of rigorous process in a previous commentary.)
GTMO is a public safety issue. It’s time for Congress to act. We should try the GTMO prisoners under the Uniform Code of Military Justice, which applies to POWs. Better, we should try the prisoners in our federal courts, where there is more process–and thus a better chance for accuracy in convictions.
When Americans understand that using stronger rules at GTMO is not about being good world citizens or being nice to prisoners, but about giving ourselves the strongest anti-terrorism tactic we can–vigorous, hard-nosed police and intelligence work–they will see the folly of maintaining our separate-and-unequal justice system. Strong procedural rules at GTMO will require our government to work for us, and the increased transparency will make our government accountable to us.
GTMO is about our own survival–something Americans of all political stripes can agree on.
BRIAN J. FOLEY is an assistant professor at Florida Coastal School of Law. Email him at email@example.com or visit his website: www.brianjfoley.com