Guantanamo Bay -- we can't win until the prison is closed

The goal of terrorists is to disrupt and destroy.  America is mistakenly giving its terrorist adversaries a tool to use in achieving that goal.  We are doing this by continuing to use the Navy base at Guantanamo Bay as a prison for a small--166 at last count--group of individuals whom the American public generally considers to be violent, dangerous and irredeemable terrorists.

Most of that group--the number is commonly reported as eighty-six--have already been cleared of being irredeemably violent and dangerous.  These clearances aren't politically partisan.  In fact, they are the result of work done by the current Administration of President Barack Obama, and also of similar actions carried out by the prior Administration of President George W. Bush.  The clearances are what passes for legal commitments in the murky legal world of the prison at the U.S.-occupied enclave of Guantanamo Bay, Cuba.  These eighty-six men are therefore in possession of what amounts to prison discharge papers that, when honored, will enable them to return to their countries of origin.

The United States has not honored these eighty-six commitments, and shows no intention of doing so in the foreseeable future.

The real terrorists--that is to say, the terrorists outside of Guantanamo Bay who have the ability and desire to harm America and its allies--know this, as do many millions of others living in the lands where the terrorists are active.  Most of those millions have no inclination to be terrorists themselves.  However, some will be sympathetic to the terrorist ideology, and a small percentage of those will be convinced by the terrorist recruiting message.  America's failure to honor these commitments provides the terrorists with an argument about American hostility, prejudice and bullying that they can use as a very effective recruiting tool.

A small percentage of millions works out to thousands, especially when viewed in the context of an ongoing conflict that is many years' in duration.  Continuing to incarcerate eighty-six whom we have already committed to discharge provides the terrorist organizations with a powerful tool that assists them in recruiting large numbers of eager, driven young men into their ranks.  We have kept eighty-six locked away, in exchange for inciting thousands more to perform dangerous, violent and deadly anti-American and anti-Western acts.

It's also true that the world at large is aware that the United States has not yet honored these commitments.  This global awareness has caused us to lose stature in our international relations, and will continue to do so until the matter is resolved.

What of the other eighty?  Well, that's a hard question to answer, because with the exception of a handful--about a half-dozen--those individuals have not been charged with any crime.  In a county as legalistic as the United States, that's incredible, isn't it?  But, in fact, even though they have all been in prison for years--five, at a minimum, and up to eleven years in some cases--no legal charges have been brought against them, and there are no efforts underway that will cause that situation to change.

As things stand now, these people understandably have no hope for themselves.  They know that there is no escape.  They know that they have no bargaining power.  They probably realize that any definitive legal status has been withheld from them.  Under those conditions, what hope could they have?

And so, an already overly-complex and overly-costly environment that the United States must manage is made even more complicated, troublesome and expensive as these prisoners seek to draw attention to themselves through desperate actions, such as the current hunger strike being conducted by at least half their number.

Once again, this is no secret to the rest of the world, and so it provides the terrorist recruiters with another very effective tool to use against us.

By the way, I wouldn't assume that the hunger strike is to be their last-ditch effort at gaining attention.  If this doesn't accomplish something for them, it's reasonable to believe that they will either repeat it at some future time, or engage in something else.

None of us knows if the individual motivations behind the hunger strike are meritorious or manipulative.  Most likely it's a blend.  Some might want nothing more than to focus enough attention on themselves so that they will be sent home.  Others have a cause to believe in, and they probably gain some comfort from knowing that the message of their individual hopelessness stokes the fires of emotion that will lead to eventual acts of retribution on behalf of their cause, performed by people whom the prisoners view as their proxies.

Are we demonstrating moral and ethical leadership to the rest of the world by preventing people from returning home when it has already been determined that they deserve to be in their homes?  Are we doing anything to enhance our security by providing terrorists with an effective recruiting message?  I think the answer to both questions is "no."

The harm that we are doing to ourselves goes beyond the consequences of the unintentional intellectual and emotional aid that we are making available to our terrorist enemies.  To the world, we present America as a nation governed by the rule of law, not by the arbitrary whims of individuals.  And yet, in prosecuting the latter stages of a conflict that has shaped our foreign policy for the first half of the 21st century, we have arbitrarily chosen to dictate that the due processes accorded by that rule of law do not, in fact, apply to those whom we have identified as our enemies and taken into custody.

If the tables were turned, and Americans were likewise imprisoned by another country, would we not demand that they be accorded the due process of law?  I believe that we would.  And, in fact, in every armed conflict of the past hundred years, we have done so.

There are all sorts of arguments to justify the continued use of the prison at Guantanamo Bay, and to justify the legal limbo of the status quo that such continued use imposes.  Most of the arguments cluster around two themes:  these are people who don't deserve the protection of the law because of the heinousness of their crimes, or because of their self-proclaimed nation-less status; and, these are people who are too dangerous to be released.

We make a mockery of ourselves and of our national institutions by saying that certain people do not deserve the protection of the law.  We Americans have spent more than two centuries telling the rest of the world that the United States is a shining example of the benefits of rule by law; the argument that certain people who are now forced to live under the authority of U.S. law are to be denied the benefit of that law is hypocritical.  It amounts to throwing over two hundred years' worth of legal advancement into one of history's trash heaps.

Furthermore, with all of the advanced scientific tools available today, such as DNA analysis and other methods of identifying an individual, their origins are known.  It is a legal and political fiction to maintain that any person has no national identity.

Protection of the law is a concept that is so enshrined in American history and culture that any argument against it is legally incompetent.  In all honesty and reality, such an argument is voiced only out of fear and insecurity.  But to succumb to fear is to begin the process of losing.

That's not what we want to do.  We have no good reason to be fearful of and insecure about an adversary whom we over-match in both numbers and wealth by hundreds of thousands to one.  Americans have built great things; what have the terrorists built?  Nothing; they only destroy.  We are big, they are small.  There is nothing to fear, because our accomplishments make us secure.

What about the assertion that these people pose an extraordinary danger to us?  There's probably some truth to that.  For security and safety reasons, that truth needs to be discovered, revealed and dealt with.  When that happens, the most likely result will be that we will be able to recognize that the threat posed by these few is far superseded by the threat posed by the ongoing recruitment efforts whose success is enhanced by the continuation of the Guantanamo environment.  But, it's hard to know these truths because these individuals are kept outside of the American legal system.

Which brings us to one of the most sordid parts of this whole story.

Why, you might ask, are they kept outside of the American legal system?  The most common argument for keeping them legally isolated is that providing these people with legal due process would be either dangerous or futile, and probably both.  Dangerous because the setting of an open court would provide a public pulpit for terrorist exhortations.  Futile because the evidence against them is of such extraordinary nature due to its terrorism context that it cannot be properly adjudicated.

The first argument is nonsense.  After all, the terrorist message is already public, and the legal nether-world environment of Guantanamo Bay incarceration only serves to amplify that message.  As I've described earlier in this writing, that's a benefit to those who would harm us; we gain nothing from it.

The second argument is worse.  It's an argument that has been corrupted by our own actions.  The truth is--and we all know this--the extraordinary nature of the evidence is that it is tainted by torture.  In that condition, it might not be admitted into a court of law in this country, nor in any other country in the world in which anybody would want cases like these to be tried.

And that taint of torture is irrevocably linked to Guantanamo.  In our own self-interest, if for no other reason, the sooner we can put that linkage behind us, the better we will be.  This is the pragmatic part of the argument for closing Guantanamo.  As long as Guantanamo remains open as it is, the relations that the United States has with the rest of the world will continue to suffer from a real-time, continuing example of the dual failings of torturing prisoners, and of abrogating the rule of law.

There's an economic dimension to this, too.  American's adherence to rule of law has always been a major factor behind the attractiveness of the United States for foreign investment, and it has immeasurably aided the success of American enterprises in conducting business all over the world.  We will be giving up at least a portion of that commercially-competitive advantage if we are seen to be making exceptions to those laws in arbitrary ways.

Why would that be so?  Because it's a matter of trust, and of the destruction of trust.  The rest of the world has always trusted us to be consistent in our use of the rule of law; now, we begin to introduce inconsistency.  Inconsistency chips away at an image of trustworthiness.

Certainly, there are differences between the legal underpinnings of dealing with terrorism, and those of buying and selling widgets.  But, once an exception is made, who is to say that such an action is a beginning or an end?

Finally--and least convincingly for me, although perhaps not for all--for the austerity proponents among us, here's something else to consider:  maintaining a separate, off-shore, highly complex facility for a relatively small number of inmates has got to be enormously more expensive than any other conceivable alternative.

The big picture of all of this is that we have a terrorist enemy whose motivation is a cause.  As such, it is composed more of ideas, and less of tangible things.  After eleven years and more of a security strategy based on the use of far-away armed conflict, we know that this strategy has not produced a quick and decisive victory.  So, what do we do now?

The adversary must be confronted, but for our success the confrontation must be done on the battlefield that we have created through our accomplishments.  Our legal system is the foundation upon which all this has been built.  It's there to be used for building more accomplishments.  Using it openly, and publicly exhibiting its encompassing virtues that can equally treat any person at any time in any place within its reach, will support our national image of global leadership and of being a long-term winner.  When honorably wielded as the ultimate weapons that they are, our ideas will prevail; their ideas will fail. That's our best strategy.

All told now, I can't see any good reason to keep Guantanamo open, and I see plenty of good reasons to shut it down as soon as possible.