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Hearings on closing Guantanamo have covered a fair amount of ground – mostly familiar. I would like to take the conversation farther – to go to the real issues and clarify what I think we need to do.

  1. The most basic problem is that we went to war against a nation, Afghanistan, that was not at war with us. I am absolutely certain that one of the major reasons Al Qaeda staged 9-11 was to provoke the USA into a full-scale invasion. It was bin Laden’s belief that infidel boots on muslim soil would cause the people to take up arms against those infidels. At the time, bin Laden was polling at 90% in Afghanistan and Pakistan. Afghanistan harbored the leader of a trans-national group (Al Qaeda) that had declared war on the USA twice and carried out two attempted attacks (WTC 1 and the 9-11 airliner attacks), the second being successful. Everybody knows about the 9-11 attack. Many have forgotten the first World Trade Center bomb. And even within the intelligence and military communities, very few are aware that Al Qaeda formally declared war on the USA twice.  Leaving aside the question of what Al Qaeda actually is, (whether an entity or a loose brand within the Muslim Brotherhood movement) no nation on earth has enacted legislation fitted to this circumstance of a declaration of war from a non-state actor, and subsequent acts of war against one or more states by that non-state actor.
  2. Closing Guantanamo will worsen an already severe problem caused by shutting down the CIA’s temporary raft of secret prisons. If there is no place to put violent non-state actors, then the only choice left is to kill them in the field. Leaving JSOC and CIA clandestine branch with no other choice but to kill, significantly damages intelligence collection. This is a separate problem from the issue of torture and maltreatment in interrogations. Do we bring them all to the USA? Do we presume that once held by US personnel they are in US legal custody? Currently, facilities are, formally, the jurisdiction of the nation in which those facilities reside, except during time of active war, when they are in a kind of limbo. That limbo needs clarification.
  3. Since our law is not fitted to making war against a trans-national group, we are stuck in the current bizarre position where it is considered legally acceptable to use drone missiles but not bullets. (Which decision requirement is enforced by the current situation where lack of a detention facility forces JSOC and CIA to kill rather than capture.) That Kafkaesque reality absolutely ensures that missiles will kill: A. The wrong target – because while a man behind a gun can make a last second judgment, a missile does not. This has happened far too often. B. Many people besides the target – thus ensuring higher levels of anger against the USA. C. This problem is greatly worsened by the impracticality of capture, because with capture, one can be absolutely sure of having the correct person(s). This is obviously wrong as the way to fight a trans-national warmaking organization. Bluntly, it’s nuts.
  4. Trans-national organizations for waging war such as Al Qaeda are founded to wage multi-generational war based on ideology. They are quite capable of inflicting greater casualties inside the USA than any previous war except perhaps the Civil War. It appears obvious to me that it is not workable to treat them as criminals, because they are not. But at the same time, as prisoners of war (which some of the Guantanamo detainees definitely are – others apparently are not), I think it is necessary to formally constitute a new body of law to deal with such POWs. Call them trans-national POWs or TPOWs. I think the primary hearing such people should be entitled to is to judge evidence as to whether or not they are a legitimate TPOW or not. That is a necessity. The second hearing they should be entitled to is a judgment as to their fitness for release into a reform program if they are a legit TPOW. Young men want to fight, get into stupid stuff – call it recruitment by stumbling around.
  5. The Saudis have developed de-radicalization camps for jihadist young men. Those have been fairly successful. Ken Ballen has written about it. If you haven’t read him, you may find it worthwhile. They use variants on deprogramming methods to do it.