Wednesday, February 4, 2009


Those who oppose the closing of Guantanamo Prison seem to suggest that the prisoners will be flown to Kennedy Airport, released from custody with a new suit and $100 to buy explosives to blow up the first Starbucks they can find. It is reminiscent of Justice Scalia's bizarre reasoning in the Boumedienne case, that if the detainees are granted hearings, they will be freed to return to the battlefield and kills more Americans; ergo they should not receive hearings, completely ignoring the fact that many of the detainees were and may be innocent. The closing of Guantanamo is a necessary move on the part of the Obama administration, because it has become the symbol of U.S. abuses and the vehicle for recruiting an ever-increasing army of terrorists.

Closing it will not result in the arbitrary release of terrorists. It will necessitate a complete review of the detainees and the basis for their detention. Those for whom there is no legitimate basis to retain them will be released, even though to where remains a constant problem. Those for whom there is evidence of terrorist activity will be incarcerated elsewhere., and eventually subject to a hearing in accordance with the law, either military tribunals or civil courts. Some of the concerns about the ability to convict the real terrorists have been self-inflicted by the Bush administration. The mistreatment of prisoners may impede the prosecutions and, indeed, may even result in some acquittals. But here again we follow the Scalia logic at our peril: Terrorists who have been tortured may be acquitted as a result of the abuses and return to the battlefield; therefore they should not receive hearings in order to avoid that possibility. We cannot deny hearings to persons merely because we have violated their rights in the process.

As to the fear of the disclosure of state secrets, I know as a former federal judge, that judges are perfectly capable of balancing the security of the country with the rights of the accused, through redactions, in camera proceedings, etc. Although the Bush administration professed that it was concerned that trial disclosures could injure national security, I suspect it was more interested in concealing its abuses rather than protecting national security.

Finally, fear about location of the detainees is unfounded. We have been able to imprison serial killers, murderers and other violent criminals for their respective lifetimes. There is no reason to believe that we are incapable of doing the same for terrorists. There is a valid concern that imprisonment on U.S. soil might enhance opportunities for terrorist activities by those who are truly terrorists, but as with other highly dangerous criminals, restrictions can be imposed to prevent such activities.

The problems as to what should be done with the detainees remains the same no matter where they are detained. Moving them to a new location neither exacerbates nor diminishes those issues. But closing Guantanamo sends an important message to the world that the new administration sees and hears what has occurred at Guantanamo and rejects and condemns it. That message outweighs any practical problems which might arise from the closing. If ever there was a time for principle to trump the pragmatic, this is it.