Heather Robinson

President Obama’s self-imposed January 20th deadline for the closing of the U.S. Detention Facility at Guantanamo Bay, Cuba has come and gone. Although the President is taking heat from the left for this action (or lack thereof), it seems to me one of his wiser moves (non-moves?) of late.  After all, he does not want a surge of terrorism on his watch.

The approximately 200 men who remain in Gitmo, despite having access to attorneys and despite having had opportunities to argue for their release, have been unable to convince military judges to release them. Military judges have already released most of the men who were originally housed in Guantanamo, about 14 percent of whom have been caught since then engaging in terrorism (and those are the ones who were deemed less dangerous).

In my interview of John Yoo, a former Bush Administration justice department official, he explained that, in his view, the problems with bringing these detainees to the U.S. for trial as common criminals are numerous. For one,  that will grant them the rights of U.S. citizens, including the right to remain silent - problematic because it compromises opportunities to gather intelligence from them. Also, open civilian trials will give them a platform to “cause mayhem” and disseminate anti-American propaganda. But most problematic, according to Yoo, is that such open civilian trials will likely compromise national security.

Last week, as January 20th–the date by which Gitmo was supposed to be closed–came and went, National Review online published a blog post by U.S. Coast Guard Academy Professor of Law Glenn Sulmasy, who has authored a book, “The National Security Court System: A Natural Evolution in an Age of Terror,” arguing for the creation of a court system specifically geared towards trying those accused of attacking Americans and U.S. interests.

After reading a bit about what Sulmasy is proposing, I am not convinced that the expense of creating a new court system, transporting, and trying Gitmo detainees in the Continental U.S. in order to “gain legitimacy” with other countries is in order if, as Sulmasy states, the U.S. military court system is indeed “very fair.” (And given that he is a U.S. Coast Guard Academy Professor of Law, Sulmasy ought to be a decent source on that. Also, it seems to me that, if the U.S. military justice system is good enough for our service members accused of crimes, it is good enough for accused terrorists and enemy combatants).

But Sulmasy argues his proposed hybrid court system would address civil libertarians’ concerns about lack of open trials and indefinite detentions. (He writes, “indefinite detention is not necessarily something we should embrace as a process–an exception, perhaps, but not a part of any new system.”)

Sounds good in theory. But attorney Brooke Goldstein, in an interview that preceded by more than a year the come-and-gone deadline for closing Gitmo, explained to me that some of the Guantanamo detainees, like terrorists in other parts of the world, make no secret of their intention to fight a “jihad” against the West — without end.

And that is a reality that civil libertarians and others concerned about indefinite detention often gloss over: even if we were to pledge our commitment to abolishing detention-without-end, it does not follow that hard core jihadists will abandon their commitment to war-without-end.  In reality, the latter has necessitated the former.

Of course, some argue that these men should be tried in U.S. courts. Then, either the evidence of their misdeeds and destructive intentions will be brought to light, and they will be sentenced and incarcerated, or if evidence is insufficient they will be released, and the world will see that the U.S. has given each and every detainee a fair trial.

In addition to such an approach towards enemy combatants being, as far as I am aware, unprecedented in U.S. history, such an approach has never–that I am aware–been undertaken in any nation on earth while a war was still going on. In other words, the Nuremberg Trials were conducted after Germany had surrendered. That speaks to the problem Mr. Yoo raised. If such trials will compromise U.S. intelligence-gathering efforts, as well as potentially compromise national security in other ways, is it really wise to conduct them while a war is still going on?

Some contend there is no war. That is wishful thinking. If Al Qaeda, an organized enemy with ideological unity that has already caused mass death and destruction, continues to declare they are at war with us, we are at war. Because unfortunately, we are not the only ones involved.

Let’s please remember, too, the human rights and civil liberties of the millions of innocent U.S. citizens, as well as citizens around the world, who are potentially threatened by terrorism. To those who say there is “no war”: Let us consider the human rights and civil liberties of Nicholas Berg and Daniel Pearl.

As a smart friend on the other side of this argument reminded me recently, the U.S. does benefit from other countries’ approval in prosecuting the War on Terror, if only for the sake of cooperation. Also, some claim that some of the Guantanamo detainees are not hard core terrorist fighters, and that others are still being held because, if returned to their home countries, they would face torture.

At any rate, I’m inclined to trust our government in light of the evidence that there have clearly been strenuous efforts–more, actually, on the part of the Bush than the Obama administration–to release detainees whenever possible. If anything, the Bush Administration erred on the side of too much liberalism in this area–with some bad consequences.

I’m inclined to think our smarter and more reliable allies understand that the U.S. military justice system is fundamentally fair. And I seriously question whether those who demonize Guantanamo and fail to see the logic behind the unfortunate need to detain extremely dangerous individuals and other enemy combatants during a war will be won over by any argument or concession. People who blame the U.S. for the pathological actions of sociopathic extremists will, when presented with evidence to the contrary, simply explain it away, because their argument is based on an irrational compulsion to demonize/blame the victim. Like “birthers” who, when presented with logical argument to counter the idea that President Obama is not a U.S. citizen, simply dismiss such logic and evidence as fabricated and call for more evidence, no amount of logic or evidence will convince them otherwise. Similarly, “truthers,” when confronted with video evidence showing the planes crashing into the Towers on September 11th, and when listening to individuals who saw with their own eyes the planes hitting the towers, will explain it away. That is because they are wedded to a fantasy that fills an emotional need.

So I question whether it is logical to contrive a whole new court system in order to appease the concerns of people who, when confronted with facts–such as that the conditions at Guantanamo are humane, and that by any logic, the people still being held there after this many years of legal recourse are probably extremely dangerous and/or incarcerated for their own protection–will nevertheless dismiss those likely realities and continue demonizing the facility and the U.S. military justice system, because doing so serves their worldview.

Mr. Sulmasy’s ideas include proposing a conference to examine how the Geneva Conventions might apply to “these folks,” meaning the accused terrorists.

Even though I don’t see how this hybrid court would change anything other than appearances, perhaps if only to consider the possibility such an idea could increase support for the U.S. in dealing with terrorism, his proposals may deserve a look.