David B. Rivkin and Lee A. Casey have a tremendously thoughtful, must-read piece, The Gitmo Blues, explaining why closing Guantanamo would badly damage America's ability to defend itself against terrorists and would not appease the critics anyway.
Here's an excerpt:
The critics rarely acknowledge that using the U.S. criminal justice system would present numerous problems. The most obvious: It would be virtually impossible to prosecute many al Qaeda detainees captured overseas by the U.S. and its allies. This is not because, as alleged by the various human rights organizations, they have been harshly interrogated and any evidence obtained in the process would be inadmissible. The more fundamental problem is the hyper-technical nature of evidentiary and other rules in America's 21st century justice system. Convicting people based upon physical evidence gathered on overseas battlefields, or relying on testimony of soldiers and intelligence agents who at the time of capture were operating in a stressful combat environment, would be exceedingly difficult. The likely result of trying captured al Qaeda members under criminal justice rules is that many of them would go free and return to the fight.
. . . .
Long before the war on terror, Europe already was refusing to send criminal suspects to the U.S. if there was any chance that the death penalty would be inflicted. So, in order to obtain the transfer or extradition of terror suspects from these states, the U.S. would have to agree not only that they would be processed through the normal criminal system--accepting the inevitable intelligence cost of presenting all of the evidence against them in open court--it would also have to agree to eschew the death penalty. And, once that point is won, the question immediately arises whether lifetime imprisonment is itself consistent with Europe's evolving human rights norms.
As for leading non-governmental organizations like Amnesty International and Human Rights Watch, they have long promoted an agenda that requires the subjection of national justice systems to international institutions such as the International Criminal Court. (It was, in fact, originally proposed as a counter-terrorism criminal court.) The claims of bias and lack of independence such groups have leveled against American military commissions can equally be flung at American civilian courts. That was done in the case of the alleged 20th 9/11 hijacker, Zacharias Moussaoui, who was tried in the Eastern District of Virginia. The critics argue that, although federal judges serve for life, they are all employees of the federal government and have taken an oath of allegiance to the U.S. Constitution. The juries that would ultimately determine jihadists' fates are composed of U.S. citizens, the very men and women who are the terrorists prime and preferred targets. Some "human rights" activists will accept nothing less than internationally supervised tribunals, in which America and its enemies can be equally tried and punished for their alleged "offenses."
Thus, closing Guantanamo would in no way pacify the critics. It would simply multiply exponentially the costs, difficulties and burdens of defending America in the war on terror, and it would pave the way for virulent terrorists to be released to fight America again.
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