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Where’s the Rule of Law in Our War on ISIS?

The San Bernardino massacre has elicited from politicians and others many calls for stronger military action and even demands for travel restrictions on Muslims and the closing of mosques.

In his oval office address to the nation on December 6, President Obama rightly called on Americans “to reject proposals that Muslim Americans should somehow be treated differently.” He assured the nation that our success in defeating terrorists “won’t depend on …abandoning our values.”

Yet in a seeming contradiction, he promised to hunt down terrorist plotters “in any country where it is necessary” and use air strikes to “take out ISIL leaders and their infrastructure in Iraq and Syria.”

Before 9/11 our “common values” included respect for the rule of law. Not any more, it would seem. Over the past decade and a half, we have witnessed increasing disrespect for the rule of law. Preemptive strikes, targeted drone killing and the torture, sexual humiliation and forced feeding of prisoners at Guantanamo violate basic legal norms for human rights and the conduct of war– norms which the U.S. helped establish in the wake of World War II.

The main obstacle to the rule of law today is Guantanamo. As a continuing monument to such prison abuses as torture, forced feeding and indefinite detention, Guantanamo is a valuable resource for ISIS in its radicalization and recruitment of young Americans.

Despite President Obama’s first day in office pledge to close it down, Guantanamo continues to confine many innocent prisoners, claim huge sums from taxpayers and shame all Americans by what it represents to the world.

According to the nonprofit organization Human Rights First, 107 prisoners remain in Guantanamo (down from the total number of 780). The current roster includes:

* Detainees approved for release: 48,

* Detainees convicted by military commission: 3,

* Detainees currently being tried by military commission: 7,

* Detainees being held without charge or trial: 49.

Of the current Guantanamo population, 90 (84% of the total) have been imprisoned for more than ten years.

It costs US taxpayers approximately $387 million a year to operate Guantanamo (an annual cost of more than $3 million per prisoner).

According to Andy Worthington (closeguantanamo.org), the group of prisoners recommended for prosecution includes Mohamedou Ould Slahi, author of the recent bestseller, Guantanamo Diary.

Given Slahi’s “extraordinary account of rendition, captivity and torture” and the apparent failure of his captors to elicit evidence of wrongdoing despite more than 15 years of interrogation and imprisonment, his continuing incarceration raises a serious question: are the CIA and DOD continuing to detain him in order to continue to block disclosure of the names of his torturers (redacted from his published account)?

Sadly, the ongoing affront to the rule of law has raised few eyebrows in the media or in government institutions charged with legal oversight. Rarely, do we hear reference to law or legal norms by our elected officials. Indeed, the Department of Justice appears complicit in the torture scandals of Bush/Cheney.

TV anchors and newspaper reporters blithely echo the demands of political candidates that the U.S. “carpet bomb” Islamist targets and “take out suspected terrorists” anywhere in the world. They ignore international laws and conventions that put a strict limit on preemptive strikes and prohibit the endangering of civilians.

More distressing is the general failure of our religious institutions, universities and bar associations to speak out against the current degrading of the rule of law. Why has there been no strong outcry from the nation’s premier law schools as they witness military strikes that violate the UN Charter and international conventions? Why do they ignore the lack of due process, indefinite detention and the inadequacies of jerrybuilt “military commissions?”

Why have our churches, synagogues and mosques not questioned human rights violations (some detailed in the recent Senate report summary) including the now regular use of drones for targeted killing and the reliance on torture and force-feeding?

Bombing, drone strikes and internal restrictions on the freedom of religion and movement are more likely to breed terrorists than build security. If we should, as our President suggests, avoid abandoning our values—values that include respect for the rule of law– we should accelerate the Periodic Review Boards (PRB) process, free Guantanamo prisoners approved for release and try the remainder in U.S. courts.

Before his term of office ends, the President must fulfill his promise of 2009 and close Guantanamo, with or without Congressional support.

More articles by:

L. Michael Hager is cofounder and former Director General, International Development Law Organization, Rome.

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