Guantanamo not ideal, but necessary

July 28, 2007|By ROBERT GARY

Are the inmates at Guantanamo unlawful enemy combatants? Do we have a right to hold them without giving them Geneva Convention rights? Do we have a right to hold them without giving them trials in federal courts? Are military tribunals or commissions appropriate forums to hear their cases?

These four questions might become important at some point, so let me try to answer them. I was a Navy JAG for nine years specializing in International Law, so here's my best effort to answer the four questions.

Question 1: I say no, they are not unlawful enemy combatants. To be unlawful they would have to be fighting for a nation-state subject to international law. Islamic terrorists are not fighting for a presently existing nation-state, they are fighting for a once and future Caliphate, which might or might not be precisely the same as a nation-state.

The authority that the Islamist jihadist terrorist draws is from the Koran, as interpreted by an ayatollah or imam or mullah and as provided to the individual terrorist through the Madrassas system, often from the time that individual is a toddler.


The terrorist has not signed on to any system of international law. The militant Ayatollahs and Mullahs never signed the Geneva Convention and never agreed to the statutes of The Hague Tribunal or any part of the Declaration of Potsdam. It would be correct to call the inmates of Guantanamo alternatively lawful enemy combatants or homicidal persons captured on the battlefield, or in the course of preparing their homicidal schemes.

These individuals, whose only authority comes from The Koran (a document) as interpreted by religious position holders (individual human beings), are wholly outside of Western systems of law. Their conduct cannot be unlawful unless they, as individuals, join a civil society in the West and become citizens - like the Islamic jihadist Pakistanis living in London. But on the high seas, or on the battlefield that comprises most of the world, their conduct is just alternatively lawful.

Question 2: Yes, they can be held without any rights under the Geneva Convention. Since they are alternatively lawful persons acting on behalf of no nation-state bound by the Geneva Convention, they cannot possibly claim any rights under the Geneva Convention.

Question 3: Yes, we have a right to hold them without giving them trials in U.S. courts. This right comes from the "Necessary and Proper" clause of the U.S. Constitution (a document) as interpreted by U.S. federal officials and U.S. federal judges and justices (individual human beings). So it's their document and their people against our document and our people.

The idea of peremptory norms of human conduct is a will-o-the-wisp of no actual significance. It is really just an expression of the narcissism and cultural egocentricity of the West. We think that strapping on a bomb and blowing up innocent women and children violates some "peremptory norms of human conduct;" they think that it is an act that creates a martyr, and indicates that "God is great," which brings the world one step closer to the Caliphate, which is the only true source of ethics and morality. We have a choice here.

We can either say the Islamist jihadist terrorists are not human, or we can jettison our idea of peremptory norms of human conduct. The latter alternative seems to me more truthful. Human beings act in a variety of ways, and there are no norms, much less peremptory ones. Decency is a function of worldview.

Question 4: No, I don't think military tribunals or commissions are appropriate or necessary in determining the fate of the inmates of Guantanamo. These alternatively lawful homicidal persons are not like Air Marshall Hermann Wilhelm Goring (condemned to death by the International Military Tribunal at Nurnberg) or like War Minister Hideki Tojo (condemned to death by the International Military Tribunal for the Far East).

On the contrary, they are far more like human beings in "altered states" (which is what happens when a person gets deeply indoctrinated, drops acid, has a brain tumor or gets rabies).

They are still human beings, but because of their altered state, they properly should be kept in an asylum for the protection of other innocent life. Their life in an altered state should be harmonized with the continuing lives of other human beings. This can only be achieved by sequestering them from civilized societies.

At this time we live in a world in which some people create emergencies - others must find ways to quell them. Which ones are the barbarians? Each is to the other. I'm not proposing a value-neutral view of homicidal jihadists by the rest of humanity, but they don't fit into our Western system of laws, and it's pointless to pretend that they do. They shouldn't be given a pass, but they should be given an asylum, a place to be that enhances the safety of all mankind.

Guantanamo is a more cost-effective and humane place to detain such alternatively lawful homicidal persons than our federal prison system could ever be. In such an asylum, we should refrain from inhumane treatment of any kind, including unreasonably extended interrogation.

We should refrain from trying to reform the inmates, make them penitent, rehabilitate them, or punish them. If they are alternatively lawful persons, then there is no issue of crimes. There is only an issue of quarantine so that innocent persons can be protected.

Getting rid of Guantanamo would be improvident because the asylum there is a unique, necessary and appropriate response to the alternatively lawful violence that has now come into the world. The "politically correct civil rights advocates" have not proposed any rational substitute. It's not broken. Let's not fix it.

Robert Gary is a Hagerstown resident who writes for The Herald-Mail.

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