WSJ editorial on sending Al Qaeda in Iraq to Guantanamo

(Update, Sunday, July 29, 2007. Welcome Instapunditeers, and thanks as always to Glenn for the Instalanche! I will take a moment when I get home to clean up some grammar and add some links for further reading to the post below.)

The WSJ editorializes today in favor of sending captured Al Qaeda in Iraq senior leaders to Guantanamo. Open link, July 26, 2007, Thursday, editorial page, here. Although I often agree with WSJ editorials on issues of counterterrorism, I do not in this case.

I have endorsed, on this blog and in a recent speech-essay in the Fordham International Law Journal, at SSRN here, closing down Guantanamo. In that regard, I guess I agree with senior officials in State and DOD, criticized by the WSJ editorial, who favor shutting down Guantanamo as a good will gesture. I don't think of it so much as a good will gesture as cutting certain losses. It is highly doubtful that we are gathering significant intelligence from those we have held for years at Gitmo, and that must be set against the public relations damage that its continued existence creates with the rest of the world.

I am not, I should say, one who worships at the altar of Pew global opinion surveys of anti-Americanism. In general, those surveys are exceedingly crude in the measurements they purport to make. Worse, they fail to address such crucial questions as to whether it is really possible for the US to be loved; whether the US was ever so much loved as the nostalgia-types seem to think; whether being loved in the world actually improves the safety and security of the US or whether that is simply an assumption; and above all the "if-you-give-a-mouse-a-cookie" incentive problem, the natural tendency that if you ask someone what you have to do in order to be loved, they will inevitably move the bar higher and higher. So my acknowledgment of the public relations costs is a limited one. As part of that - again limited, but worth mentioning - is the role that Guantanamo plays in mobilizing elites within the United States itself against the very idea of a war on terror. If there were still evident, serious gains in intelligence from Guantanamo at this point, it wouldn't take much to override the public relations damage, but those intelligence gains appear to be largely, very largely, in the past.

The virtue of Guantanamo today is a different one - keeping people out of the fight who would indeed violently return to it. I acknowledge 100% what the WSJ notes about the nature of the detainees held at Guantanamo since it opened:

The Combating Terrorism Center at West Point recently examined the non-classified evidence about Gitmo detainees, and in a new report concludes that 73% were a "demonstrated threat" to U.S. forces. No less than 95% were a "potential threat." According to the Pentagon, at least 30 former Gitmo detainees have returned to fight Americans after deceiving U.S. interrogators and being released.

One of those detainees, Abdullah Mahsud, was captured in northern Afghanistan in late 2001, held until March 2004, and upon release immediately became a Taliban leader in southern Waziristan near the Afghan-Pakistan border. In October 2004, he directed the kidnapping of two Chinese engineers, one of whom was killed during a rescue attempt. This week he blew himself up with a grenade rather than surrender to Pakistani troops who had him surrounded.

Moreover, the WSJ is right to point out that critics of Guantanamo fail to explain what the alternative is, other than to bring the detainees into the regular criminal justice system. That seems like a good idea to Human Rights Watch - see its letter re the Goldsmith-Katyal national security court proposal below, blithely informing us that the regular criminal justice system has worked just fine in dealing with terrorists. It has not, as Ben Wittes has pointed out several times, seemed to many other observers to have worked out so well so far. The 1993 WTC bombing trials or the Massaoui trial, for example, seem paradigmatic of why the ordinary court system can't handle serious terrorism cases.

***

(Let me add something not in the original post.) Our ordinary court system is rightly designed not merely to meet some genuinely bottom-level constitutional or human rights minimum. What it takes as minimums at least partly accepts the idea that some of our ordinary criminals can be deterred and even reformed and that we should not in every instance descend to the lowest human rights denominator in how we treat those who either violate society's legal rules or are alleged to have done so. It is unlikely that a society as large and heterogeneous as the US could ever go with the Scandinavian reform model of prison furloughs and gradual reincorporation into society and so on - those humanitarian measures depend in large part on a behavioral consensus in society that even criminals share - and notice how badly those humanitarian protections have served in Scandinavian societies when, as in a multicultural setting, such consensus is not present and is instead exploited. And God knows American society is far less committed than it should to reform, rehabilitation and constructive change for inmates and prisoners. Worse, over decades the US has been committing more and more power into the hands of prosecutors - unaccountable prosecutors rather than judges, and telling the citizenry to rely not on the rule of law, but on prosecutorial conscience and discretion.

Our society, that is, already is far too prosecutor-dependent than a free society should be. Our standards for the treatment of our ordinary accused and ordinary convicted criminals are too low, not too high. But in the case of terrorism - dealing with people for whom the usual rational calculations of criminality do not work, where they cannot be deterred, where after-the-fact investigations and trials are just that, after the fact, and where the possibilities of innocent loss of life are so great, along with its spinoff effects on how ordinary life is conducted - we are not morally obligated and rationally cannot afford to offer criminal law protections that rise above certain constitutional and human rights minimums and which presume rationality, deterrence and even a certain amount of humanitarian rehabilitation.

We are not legally obligated to do so, we are not morally obliged to do so, and we shouldn't do it. But at the same time, we should not lower the standards for our existing criminal justice system, for all its participants, the ordinary criminals and the terrorists - on the contrary, we ought to be raising the standards of that system, strengthening both protections against false accusation and improving the treatment even of those justly convicted. Mingling counterterrorism justice and ordinary justice over time has the effect of both empowering terrorists and lowering the standards by which we treat ordinary criminals - consider, as an example of this trend, the deployment of the Patriot Act - promised and sold to the public as a special measure against terrorism, and yet the use of its provisions even against heinous but nonetheless otherwise ordinary crimes as child pornography. We should not be mingling ordinary criminal justice and counterterrorism in this way.

But bringing counterterrorism cases from Guantanamo into the ordinary criminal justice system does exactly that - and the result is either what Representative Nadler quite astonishingly urged in hearings recently (here, around the 51 minute mark) when he endorsed the idea that, even if captured on September 10, Mohammed Atta sould not have been interrogated, even at the cost of September 11 and the WTC coming down. Or else it is a de facto expansion of prosecutorial power and discretion to address the demand for public safety, police and prosecutorial power necessarily hugely expanded but without, remarkably, any reason to think that such "after the fact" actions would actually increase safety. It is a proposal for the worst of all worlds - a bigger police state with no increase in safety, a lowering of standards in the regular criminal justice system to try and deal with terrorism cases that simply don't belong, and no reason to believe that terrorism has been prevented up-front. I address this briefly in a piece in the New York Times Magazine, from last year, pdf here.

***

So the ordinary criminal justice system does not necessarily strike observers who are not already committed to it as the acme of counterrorism as such a good idea. But if not Gitmo or the ordinary criminal justice system - well, what and where? Because make no mistake, unless the US adopts a de facto policy of immediately killing rather than detaining - foolish, from an intelligence standpoint, quite apart from its morality - we will detain people and we will have to decide what to do with them, and we will conclude, HRW notwithstanding, that some of those people will not be triable within the regular criminal justice system.

My own conditions for closing Guantanamo include the stringent and frankly unlikely to be met requirements of creating a genuine alternative with its own system of civilianized preventive detention, a national security court, and other conditions not likely to be met as a condition of closing Guantanamo. Merely doing what the anti-Guantanamo activists want and closing the place by transferring them to the criminal justice system is a non-starter in my view. Indeed, if the option is closing Guantanamo and transferring the detainees to the regular criminal justice system, it would actually be better to simply let the vast majority go free - I don't include here the so-called high value detainees - even though many of those let go pose a considerable risk of future terrorism and civilian deaths, not to mention ... well, war against the United States and the lives of our soldiers. It's not just and it's not prudent, and it will almost certainly cost (more) lives; those for whom pretty much all those Guantanamo detainees are just a bunch of shepherds sold by the Northern Alliance might want to start keeping score on the civilians killed as they are released - along with dead American troops.

That said, the transfer of Al Qaeda in Iraq detainees to Guantanamo raises important legal and policy questions about Iraq as a war zone. In general, I do not favor transferring detainees in the Iraq conflict out of Iraq. It is not under all circumstances prohibited by the laws of war. The 4th Geneva Convention prohibits the forcible transfer of "protected persons" out of the occupied territory, whether into the occupier's territory or that of any other country. (Art. 49) However, far from settling anything, this merely brings us back to two highly familiar questions that have to be answered prior to applying Art. 49.

First, is this an occupation, and the US still an occuping power, in the sense of the 4th Geneva Convention? Or has the return of Iraqi sovereignty, even one which cooperates with US forces, ended the occupation and the formal application of occupation law under the 4th Geneva Convention? I would think that as a matter of law, occupation law no longer applies, although there are certainly arguments that can be made the other direction. (Those arguments, by the way, in large part revolve around the weight one gives various facts and circumstances, and people should be very cautious about ruling the other side's argument out of bounds as bad faith.)

Second, is an Al Qaeda in Iraq detainee, a non-Iraqi in particular, a "protected person" within the meaning of the 4th Geneva Convention? (And bearing in mind that Protocol I concepts of "civilian" do not apply to the US as treaty law, having not joined the Protocol.) Obviously, this question has gone round and round in the whole war on terror debate. It can be summarized this way: if an Al Qaeda in Iraq detainee is not a POW by reason of flunking the requirements of the 3rd Geneva Convention on POWs, does the person then somehow or even automatically gain the protections of the 4th Geneva Convention covering civilians and occupation? This has been a long argument, which I won't rehash here, except to say that my view is overall that held by the US government, that if, as combatant, you flunk the provisions of the 3rd Geneva Convention in Article 4 because, for example, your organization systematically violates the laws of war, you do not thereby qualify for arguably even better treatment under the 4th Geneva Convention. That would be a perverse result, plainly; in any case, your status is determined under the 3rd Convention, as an unprivileged belligerent. So it would not be per se illegal, as a violation of the 4th Convention, for the US to send persons it has determined to be unprivileged belligerents - and it would be a good idea actually to hold an Article 5 hearing, by the way - under the 3rd Convention for detention outside Iraq, in Guantanamo or elsewhere. (PS. There's a lot of discussion of those issues on this blog - look under the laws of war tag.)

Whether it would be a good idea as a matter of policy - legal policy as well as politics - is another question. Overall, I think it is a good idea to turn these guys over to the Iraqis and let them deal with them. That proposal has its own problems, of course, but short of letting them go free, the US government is not likely under any circumstances to win any praise from groups like Amnesty or HRW. If the US sends them Guantanamo, it will get slammed, if it turns them over to the Iraqis, it will get slammed, if it holds them in Iraq, it will get slammed for having recreated Guantanamo-in-Iraq. There's no pleasing the human rights critics - if Bush is for it, we're agin' - so why try?

Yet if the US is serious about Iraqi sovereignty, then as a matter of policy, they are the people who should deal with them. Sending them to Guantanamo merely keeps the US forever in charge of crucial matters of security in Iraq and pours gasoline on the fire - we have heard that argument elsewhere, have we not? If you think, as the WSJ does, that the United States is engaged in a unitary global war on terror - a unitary, single global war on terror in the legal and not just strategic sense - in which detainees in Iraq are legally no different from, say, someone detained in Somalia or O'Hare or anywhere - and Guantanamo is where you send all such detainees to keep them out of the fight, then, yes, it makes perfectly good sense to seriously consider, at least, sending Al Qaeda in Iraq to Guantanamo.

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But that's not in fact how the legal and policy situation is evolving, starting with things like the Military Commissions Act of 2006. The WSJ may prefer that the Bush administration pursue a purely "war" strategy, as both a legal and strategic matter, but the Administration, for very good strategic reasons, has not done so - not from the moment, at a minimum, when the definition of crimes for which military commissions could punish people departed from defining a combatant in traditional laws of war terms as "taking active part in hostilities" to domestic law terms of "material support for terrorism." Material support, conspiracy, aiding and abetting - none of those is a traditional criterion for defining combatancy under the laws of war, yet they are indeed crucial from an "intelligence" approach to counterterrorism law. The Administration was strategically correct to move that direction, but it means that it has, functionally, given up the idea of a "legal" global war on terror in favor of multiple legal regimes that include laws of war, ordinary criminal law in some circumstances, and an emerging - but as yet very inchoate - "intelligence" conceived body of new domestic counterterroism law that includes such concepts as "material support," but also includes things like the idea of a civilian national security court and other things besides.

That shift -towards a counterterrorism law defined not by laws of war, nor by ordinary criminal law, but instead by a new domestic legal regime set by counterterrorism intelligence concepts - means that it would be a pointless exercise, and indeed provocation, for the US to transfer Al Qaeda in Iraq to Guantanamo. If your point is to provoke, by underscoring that the global war on terror is indeed a legally unitary war globally, then fine, provoke - this is in effect what the WSJ calls for. But the Administration should not do so because it is the wrong provocation - the Administration has been moving away from the conception of a unitary war on terror as a legal matter to accepting and imposing different legal frameworks on different parts of the strategic war on terror. That means war and the laws of war in some circumstances, criminal law in some circumstances, and the gradual evolution of a law of "intelligence" counterterrorism in still others.

The consequences is that if Guantanamo is needed in the future, it is needed for something quite different and indeed far more controversial than unprivileged belligerents taken on an undisputed battlefield in the ordinary and traditional sense. Guantanamo, if needed in the future, is a matter of a place to hold detainees - as Ben Wittes has described - who are aliens captured abroad in intelligence captures, whom we have insufficient evidence and ability to try in a regular US court trial but whom we cannot afford to let go free. Perhaps we should recreate such a facility in the US proper; the point is, that is the category of detainee the real debates should be about. The laws of war provide perfectly acceptable answers for those taken on ordinary battlefields in Iraq, including Al Qaeda in Iraq.

The US is, in other words, in fact drawing distinctions between kinds of detainees, because it is not, in fact, treating counterterrorism as a single, unitary, global war on terror - yes, a single, unitary struggle in the strategic sense, but no, not in the sense of a single legal standard for every situation and circumstance. The US does functionally recognize differences between people taken in New Jersey and people taken in Iraq and people taken in Yemen, Somalia, or elsewhere. Maybe that is a profound strategic mistake, as the WSJ would presumably believe. My own view, however, is that it is the better legal and strategic view - and I say this as a strong proponent of the "war" approach to Islamist and jihadist terror, someone who rejects firmly the "it's all criminal law" approach, someone not urging a "softer," "let's improve global public relations" approach to counterterrorism. Counterterrorism requires an honored place for abduction and assassination, along with many other things. Counterterrorism policy, as a matter of how it is carried out under the rule of law, will have to set up distinct legal regimes to reflect different forms of action ranging from war to criminal law enforcement to covert action, and to these distinctions will have to take into account the origins and status of various kinds of detainees. Those taken on ordinary, traditional battlefields, such as Iraq, even when they are unprivileged belligerents such as Al Qaeda in Iraq, are best dealt with in those terms -in that specific case by application of the ordinary laws of war - and in situ, even if the laws of war permit greater latitude than that.

The most compelling reason for that? Because it is better, at this point, to avoid an unnecessary fight over the laws of war in this case - one that is specific to the circumstances of the war in Iraq. The much bigger, much more important argument will be there in any case, the argument over what to do with detainees for whom there is no obvious war zone, no Iraqi government, no US presence, no actual 'war' in the strictly legal sense. There is a pretty easy solution in Iraq - keep them in Iraq and don't pick an unnecessary policy and legal fight. Keep the powder dry for the much bigger fight over future detainees who don't come from Iraq or Afghanistan, and who threaten terrorism within the United States itself. That policy and legal battle is almost certain to come, and probably sooner rather than later.

*** From the WSJ editorial:

The question is what to do with him [Khalid Abdul Fattah Dawoud Mahmoud al-Mashadani] and other al Qaeda figures who are being captured in increasing numbers in Iraq. One possibility is to turn him over to Iraqi security forces, who would not read him any Miranda rights. He would probably be tried and hanged. This would serve the cause of justice because Iraqis are the main victims of al Qaeda in Iraq's suicide bombings. But handing Mashadani over to Iraq might also eliminate him as a source of intelligence, even as we learn more about al Qaeda in Iraq and thus know better what to inquire about.

His other natural destination is Guantanamo, where the U.S. houses other enemy combatants in the war on terror. This would guarantee his safe treatment, while also keeping him available for further interrogation. Just as important, the transfer would signal that Gitmo continues as a valuable antiterror tool.

We're told, however, that some senior officials at the State and Defense Departments are opposed to such a transfer. They want Mr. Bush to close down Guantanamo as a goodwill gesture to the rest of the world, and they believe that transferring al Qaeda in Iraq detainees there might make that harder to do. They may be right, but in our view that's all the more reason to send the detainees to Gitmo.

While Guantanamo is clearly disliked around the world, those who want to close it have yet to offer a suitable alternative. Transferring its detainees to some place further offshore would mean spending billions of more dollars on a new facility, while facing the same criticism from antiwar activists. Gitmo is also territory under U.S. control, which means it avoids the complication of embarrassing allies in Afghanistan, Iraq, or somewhere else (as in the "secret CIA prisons" in Europe where KSM and other 9/11 plotters were allegedly kept before their transfer to Gitmo in 2006).

The legality of Guantanamo has also been upheld by the Supreme Court, which isn't true of any other foreign outpost. The High Court has agreed to hear another Gitmo-related case in October, and it's not a bad idea to remind the Justices that Guantanamo harbors terrorists captured on the current battlefield while trying to kill Americans. That fact might give them pause before they supplant their own war judgment for the Commander in Chief's and make it easier for these killers to return to the war.

The real goal of Guantanamo's critics is to have these killers treated like common criminals in American courts. That would make it impossible to deny them the full array of U.S. legal protections. In many cases, prosecutors would lack enough evidence to convict them under normal trial rules, especially if much of the evidence were classified. Soldiers don't build a criminal case like "C.S.I." sleuths when they're snagging an enemy on the battlefield while also trying to avoid getting killed.

The result of bringing Gitmo detainees into U.S. criminal courts would inevitably be their widespread release ...