Crosshairs - Military Matters in Review 

With all the rhetoric about the detainees at Guantanamo that’s bouncing from one side of the Beltway to the other, it’s time to isolate the facts.

Nearly one in every 10 detainee who has been released has hightailed it back to the killing fields. And they’re not all just run-of-the-mill suicide bombers.

For example, Said Ali al-Shihri is al Qaeda in Yemen’s second in command, and Abdullah Gulam Rasoul reportedly is the Taliban’s operational commander in southern Afghanistan. If only one in 10 go back to the kill, and with some 241 detainees still at Guantanamo, this would amount to 25 assassins. We must remember that it took only 19 Muslim fanatics to kill almost 3,000 Americans on Sept. 11, 2001.

 In addition to the problem of letting cutthroats go back to cutting throats, turning them over to American courts or courts martial can create a two-step domino reaction: (1)  prosecutors can’t get convictions without severely compromising national security, thus exposing more Americans to danger; and (2) if killers go free, they go loose into the world to commit more mayhem. Defense Secretary Robert Gates explained the quandary with a question to Congress: "What do we do with the 50 to 100 -- probably in that ballpark -- who we cannot release and cannot try?" 

Senators Lindsey Graham, R-S.C., and John McCain, R-Ariz., focused on the problem in a Wall Street Journal article May 6, with five cogent dictums for the administration and the Congress to take to heart: 

1.  “Do not confuse war with common criminality.” Most of the detainees at Guantanamo are not your common jailhouse criminals. They are committed to the destruction of our way of life: secular law, equal rights for women, freedom to practice any -- or no -- religion, and freedom of speech. They have forcefully forsaken the rights that innocent Americans enjoy by birth.
2. “Military commissions remain the appropriate trial venue for these individuals.” The Military Commissions Act of 2006 applies. Furthermore, the American military justice system -- modified for war crimes trials -- is a tried, proven, and trustworthy apparatus.
3. ”Preventive detention will continue to have a place in the war on terror.” Combatants can, and should be, held off the battlefield as long as they present a military threat. Indeed, if somebody breaks into your home threatening to kill you, and his pistol misfires, would you give him your pistol? To hear petitions for habeas corpus authorized by the Supreme Court, we need a “ designated national security court.” And we need an annual review to determine whether each detainee remains a national security threat.
4. “We must address the detainee situation at Bagram Air Base in Afghanistan.” Afghanistan is not Guantanamo. Afghanistan is an active theater of war. We cannot endanger the safety of our Armed Forces who are fighting the enemy.”
5. “Finally, Congress must be involved in crafting detainee policy.” We already have found that executive orders are not the answer to a complex problem that involves detained Muslim fanatics. The answer lies in careful study and debate that ultimately will include all branches of government.

 The senators’ article closes by saying that the enemy-combatant detention process must be transparent, provide robust due process consistent with the law of war, involve an independent judiciary, and protect us against a dangerous enemy. If the process is administered correctly it will be seen as an “intelligent balance of due process and national security.”

We must look at the detention rhetoric against a backdrop of people who kill innocents in the name of religion, and decide who has the most rights -- them or us.

 This article may be forwarded or republished on your website with attribution to Crosshairs - Military Matters in Review by Fred Edwards. Visit http://www.milmat.net for more Crosshairs.