The word terrorist comes freighted with associations. When I hear it—to be honest—I do not picture Irishmen, Timothy McVeigh, or sarin attacks in Tokyo subway tunnels. I picture crazy-looking bearded men, explosions, and sand. Now, lest I be cast Juan Williams-like into the ring of hell reserved for the un-PC, I should emphasize that I do not say this is as it should be. But subconscious associations like these pollute the debate, now recrudescent, over Guantanamo.
The baggage of the word terrorist owes most of its weight to the near-monopoly lately held by some enthusiastically Muslim Arab men over spectacular, ideologically motivated violence. Non-Arabs and non-Muslims commit violence too, of course, but it is usually of a less spectacular or less ideological sort than that which emanates from the Arab Muslim community. Most Americans who came of age at the turn of the millennium have therefore encountered the word terrorism in no other context, and are unable to separate abstract meaning from discrete experience. Unlike war or human trafficking or theft, terrorism in most of our minds has specific geographic, religious, and historical dimensions. To consume media in the twenty-first century is to see picture after picture of exotic-looking Middle Eastern suspects while hearing the word terrorist. Repeat, repeat again, and the association forms.
The word Guantanamo is similarly compromised; like terrorist, it sags with baggage. It evokes images of prisoner abuse and the excesses of Bush-era counterterrorism policy for some, and the words necessary evil (or just necessary) for others. Many of us select a position on Guantanamo either out of hatred for (presumably guilty) terrorists and contempt for the whiners who care about their rights, or out of outrage toward the prison as a house of post 9/11 horrors: abuse, neglect, and torture of blindfolded, orange-clad (presumably innocent) prisoners.
These associations, however, are irrelevant to the central question: that of Guantanamo’s fundamental legality. This question is not about the justice of the wars of Iraq and Afghanistan, the causes of terrorism, or even about what happens inside Guantanamo. A prison should not be closed simply because it has seen abuse or housed innocent prisoners. It should be closed, however, if its existence violates the law.
Two precedents compete to define the debate: the criminal justice precedent, better for attacking Guantanamo, and the war precedent, better for defending it. In a recent New York Times Room for Debate on the subject, Eric Posner invoked war, and argued that even if the present arrangement is not ideal, no alternative exists which respects human rights any better. Even if we did try enemy combatants criminally, he says, we would still need some sort of holding center for freshly caught suspects. Guantanamo serves that purpose. Opponents of this view—those who deem Guantanamo an illegal or immoral counterterrorism tool—complain that those interned therein are denied the rights guaranteed by both the Constitution and most of the Geneva Convention.
Thus, the criminal-combatant distinction emerges. Do terrorists have the same rights as international criminals? If not, why not? How do international criminals cross the conceptual boundary and become terrorists?
Answer one question, and more spring forth: do constitutional rights apply to everyone in U.S. custody? Either they do, or they do not. Do they apply only to citizens? It’s a yes-no question. Under what circumstances are one’s rights nullified? This must be clarified publicly before another U.S. citizen is deliberately killed in cold blood by our military, because Guantanamo’s implications reach beyond Cuba.
Anwar al-Awlaki, killed by a drone on September 30, was hard to arrest. He was fairly dangerous. He was in a country whose police were unwilling or unable to capture him. He was a member of al-Qaeda. But this is not a question of practicality; it is a question of legality. Anwar al-Awlaki was an American citizen. Either it is legal to kill dangerous, inaccessible, al-Qaeda-affiliated Americans in cold blood or it is not.
One might say that the whole point of Guantanamo is that the earlier questions must remain unanswered in the name of national security. This argument leads one not down a slippery slope, but over a cliff beyond which no law exists and anything is permissible.