An Unanswered Question 13 Years Later: What Should the U.S. do with Gitmo Detainees?

Gitmo 2 On May 23, 2014, Federal District Court Judge Gladys Kessler lifted an order that barred the military from force-feeding Syrian detainee Jihad Ahmed Mujstafa Diyab at Guantanamo Bay. Kessler’s order came only a week after she ordered the military to stop force-feeding Diyab because “force-feeding is a painful, humiliating and degrading process.” Through his lawyers, Diyab has challenged the military’s force-feeding protocol and hoped to have the procedure moved to the base hospital rather than being strapped into a chair and have the tube remain inserted only once during the feeding rather than being reinserted and removed for each feeding cycle. As Charlie Savage of the New York Times reported, the Department of Defense has refused accommodating Mr. Diyab’s requests and the force-feeding of Diyab will proceed under current DoD protocol. Kessler’s court decision revealed her anguish in the decision-making process stating, “Mr. Dhiab may well suffer unnecessary pain from certain enteral feeding practices and forcible cell extractions. However, the Court simply cannot let Mr. Dhiab die.” Diyab’s current situation is an ominous reminder of President Barack Obama’s 2008 campaign promise to close Gitmo within the first year of his presidency. Furthermore, the case questions the ethics surrounding our detainee program as we become further removed from 9/11 and the War on Terror.

Rushing to detain anyone suspected of terrorism was one of the early follies of U.S. War on Terror policy. According to NPR National Security correspondent Jackie Northam, at its height, Gitmo held around 750 prisoners that were primarily rounded up in Afghanistan. Due to limited intelligence about the region pre-9/11, a sizable portion of detainees were gathered through a bounty program. In 2007, Amnesty International reported that bounty hunters turned over 369 people to the U.S. for as much as $5,000 U.S. dollars per suspected terrorist. While certainly a minority method of capturing suspected terrorists, the use of bounties was indicative of the Bush administration’s haste to gather intelligence and punish Al Qaeda for 9/11. Unfortunately this swift action by the U.S. virtually bypassed the rule of law, which is how the U.S. ended up detaining men like Diyab.

Diyab’s case is indicative of the detainee crisis; during his 11 years at Gitmo he’s never been charged of a crime and he was cleared to be released by a task force years ago. In 2013, 86 of the 166 detainees were cleared for transfer but were not released, which led to a much publicized hunger strike by over 100 detainees last summer. Now releasing Diyab and the other 85 detainees cleared of charges is more complicated than releasing Joliet Jake due to various political realities. First, in 2011 the Armed Services Committee released a report that stated 27 percent of released Gitmo detainees have been “confirmed or suspected to have been engaged in terrorist or insurgent activities.” The “suspected” phrasing should give one pause for how credible this assessment is, but in 2007 the Department of Justice argued the recidivism rate for Gitmo detainees was around 16 percent. In any case, the threat of detainees returning to terrorism is a real threat. Second, many of the nations (Yemen in particular and Syria in Diyab’s case) the detainees would return to are politically unstable and could increase the chance of recidivism or upon returning home, the nation might torture or kill the freed detainee. Given these potential eventualities, one could understand and maybe even condone the actions by the Department of Justice and the White House to hold these detainees indefinitely.

Yet, I find these reasons for holding detainees without cause more reprehensible and damaging to the U.S. than the risk involved by releasing them. Judge Kessler’s decision on Friday made me think of my favorite speech: Robert Kennedy’s eulogy of Martin Luther King Jr. on the 1968 campaign trail in Indianapolis. Kennedy had become a master of empathy; you could visibly see the softness in his eyes as he referenced the tragedy of his brother’s assassination to demonstrate his compassion for the audience. But along with eulogizing MLK, Kennedy questioned what the tragedy meant for understanding who we were as a nation.

“In this difficult day, in this difficult time for the United States, it’s perhaps well to ask what kind of a nation we are and what direction we want to move in.”

Certainly Kennedy’s thoughts were tendered toward racial justice in the U.S., but his question appears appropriate for any major crisis the nation faces. Thirteen years after the terrorist attacks of 9/11 thrust the U.S. into the War on Terror, the nation would benefit by heeding to Kennedy’s question with regards to Gitmo and our national strategy after President Obama stated the War on Terror was over. What kind of nation are we by continuing to keep detainees at Gitmo after they have been cleared to be released, as they have been in Diyab’s case? Furthermore, what kind of nation are we by keeping the 46 we’ve deemed too dangerous to ever release, but lack the evidence to convict them by trial?

With regards to handling detainees, Kennedy’s question of “what direction do we want to move in as a nation” is an important and revealing question for understanding the balance between maintaining our principles and preserving the nation’s security. For me, restoring our faith in the rule of law, due process, and justice outweigh any concern over security. Beyond the treatment of detainees at Gitmo being used as a recruiting tool for Al Qaeda, our holding of detainees without formal charges violates our virtue of justice. It was our commitment to justice that led the Allies to have military tribunals for Nazis war criminals at Nuremberg after WWII. William Shawcross, son of Britain’s chief prosecutor during the Nuremberg trials, wrote about the lessons of Nuremberg in the New York Times in 2011: “Nuremberg not only dispatched justice swiftly, it also created a historical narrative that has survived.” The narrative of Nuremberg is one of justice and virtue. The Allies could have rounded up Nazi war criminals and killed them without trial. I very much doubt history would even footnote such killings. But they didn’t do that. They took the harder and just route. Shawcross further noted that taking detainees to trial “would not be precisely modeled on the successful tribunal at Nuremberg, but it would follow in that hybrid tradition of using the best civilian and military advocates, prosecutors and processes all carrying out their tasks in the full view of the press.”

The burden of being the leader in the free world is standing up for and adhering to our values even in the shadow of terror. Our finest hour of the 20th century wasn’t just defeating the Nazis in WWII, it was also treating the agents of mass murder and genocide through military tribunals rather than kangaroo courts. The U.S. should have the same courage today in the wake of the War on Terror as it did after WWII. President Obama could start by releasing Diyab to Uruguay who has offered to grant Diyab asylum. Would this move be without possible recidivism? No, but I don’t want to live in a nation that bends its values due to potential risk. If we’re not a nation standing up for the virtue of justice, as Diyab has never been charged with a crime, we should ask ourselves Kennedy’s question again, what kind of nation are we?

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