Guantanamo Laureate

Obama threw many stones at Bush, and now lives in a glass house.

by Victor Davis Hanson

National Review Online

Over the last decade Barack Obama — in campaign mode for various state and federal offices — repeatedly denounced the Bush-era security protocols as either unlawful or of little utility. Indeed, few political figures made the case so unremittingly that the United States had gone rogue in its zealotry to fight terror.

To perpetual candidate Obama, there were no tragic choices, no hazy areas of human frailty, no recognition that well-intentioned public servants were doing their best under trying circumstances to keep Americans safe, and to do so as humanely as possible. Instead, the so-called “war on terror” became an easy target for a demagogue worried more about scoring political points than about understanding the plight of his country at war.

Rendition? Obama once called that “shipping away prisoners in the dead of night.”

Military tribunals? They were nothing more than a “flawed military commission system.”

Preventive detention of terrorists? To Obama that was “detaining thousands without charge or trial.”

How about the surge of troops into Iraq? “Not working.”

And the Patriot Act? “Shoddy and dangerous.”

But nothing so roused candidate Obama’s scorn as the detention facility at Guantanamo Bay. To him, it was a “sad chapter in American history”; “a legal black hole”; “a false choice between fighting terrorism and respecting habeas corpus”; etc. On the stump he serially caricatured it before cheering audiences as some sort of Soviet-style gulag. Not once but in succession he vowed to close it down by January 2010, to mark a symbolic year’s period of change in the era of Obama.

But that might not happen quite so easily. Around 50 to 60 prisoners who have been released have returned to some sort of terrorist activity — most recently the Guantanamo alumnus Yousef Mohammed al-Shihri, who was repatriated to Saudi Arabia in 2007 and was killed earlier this month in a terrorist operation at the Saudi-Yemeni border.

Apparently few foreign governments want back their own home-grown terrorists who have been caught on the battlefield — unless we pay huge bribes and quit worrying whether the released prisoners might be tortured or summarily executed upon their arrival home.

Indeed, many nations may have put themselves in a rough spot: If it was rather easy to slur the cowboy Bush as a Nazi-like jailer who wouldn’t close down his shop of horrors and release innocent suspects, it is harder to deal with a kinder, gentler Obama who wants to release terrorist-killers into their care.

Candidate Obama often sounded as if he had always assumed that Bush first created Guantanamo as a monument to his Constitution-shredding paranoia, and only later filled it with largely innocent prisoners. At one point Obama offered his Senate office to help lawyers sue on behalf of Guantanamo prisoners.

But as President Obama has discovered — just as he has dropped his campaign talk of ending renditions, tribunals, wiretaps, and intercepts, and of rapidly withdrawing from Iraq — Guantanamo is a bad choice among a number of worse ones.

In declared wars against uniformed enemies, we might — as we did during World War II — build POW camps and detain captured enemies until the peace was ratified. Even in nebulous wars like the Korean and Vietnamese conflicts, there were most often uniformed fighters, and formal written intentions, armistices, and declarations that marked the beginning or ending of hostilities.

But after 9/11, we faced an enemy that had attacked the continental United States in a deadly fashion beyond the ability of the Nazis, imperial Japanese, and Soviets, but without uniforms — or even conventional military forces as we had known them in the past. Yet al Qaeda and its Taliban sympathizers were not quite a handful of criminals who could be individually tried and convicted for terrorist acts, given that there were thousands of radical Islamists along the Afghanistan-Pakistan border who had committed mayhem — both on the field of battle as combatants, and in foreign sanctuaries as architects of terrorism.

The ad hoc solution at Guantanamo sprang up, in other words, for want of a better idea of what to do with hundreds of such captured monsters. Were we to put them all on much-celebrated trials, with public defenders or publicity-seeking radical pro bono lawyers, with changes of venue to fairer jury pools in Berkeley or Madison, and with intricate legal disputes over contaminated evidence in Waziristan and lack of Miranda warnings in Kandahar?

The problems of Guantanamo’s existence transcend George W. Bush. That truth is evidenced by the reluctance of Obama himself to summarily close it down, and of his aficionados abroad to make his task easier by accepting their own detained nationals, and of his liberal supporters to extend the same sort of invective to him as they did to Bush for not shutting it down.

But there is one other problem with closing Guantanamo — perhaps the greatest of the paradoxes that will plague Obama. Since he took office, there has been a marked increase in Predator assassination strikes, both inside Pakistan and on its borders. Indeed, in just nine months Obama has approved more Predator strikes than did George Bush in three years. By some accounts, dozens, maybe hundreds, of terrorist suspects and their families have been obliterated from the air since January 2009. In a few cases, women and children near the intended targets have also gone up in the Hellfire-induced smoke; in others we have tragically hit the wrong targets and executed the innocent.

Yet once the Obama administration went down the path of redefining war as courtroom procedure, and assuming that the United States was somehow amoral in not extending habeas corpus and American jurisprudence to captured terrorists, then almost everything the United States does in our newly dubbed “overseas contingency operations” is ripe for legal scrutiny.

Personally, if I were a terrorist suspect, I’d rather be picked up by a Special Forces team in the Hindu Kush, be shipped to Cuba, have my case reviewed by military lawyers, be allowed a Middle Eastern diet, and be provided with a Koran and arrows pointing to Mecca than simply wait to have my head exploded without warning by a Hellfire missile, while sitting inside my mud-brick hideout in Waziristan alongside my soon-to-be-incinerated family.

When Bush ordered such Predator attacks, it was seen as part of a brutal war, in which the United States had few options to stop terrorists from committing another 9/11. In such a messy, horrific struggle, Predators — like Guantanamo — were seen as terrible choices amid more terrible alternatives.

But not now. An administration that wants to investigate former CIA officials for their part in Guantanamo, assures the Europeans and the UN that “Bush did it,” and has made the case that America’s name was sullied through unnecessary and cruel detentions, surely cannot become investigator, prosecutor, judge, jury, and executioner in one millisecond from the skies over Pakistan. Sorry, no such leeway is allowed messianic moralists.

Even the charismatic Barack Obama cannot convince his liberal base for long that it is horribly wrong to waterboard Khalid Sheik Mohammed, the planner of the mass-murdering on 9/11, but perfectly fine to incinerate an al-Qaeda suspect along with noncombatants in his general vicinity.

In short, Nobel Peace Prizes are awarded for those who loudly promise to undo George Bush’s work, not to trump him.

©2009 Victor Davis Hanson

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