Sunday, December 14, 2008

Ask a Stupid Question

Whoever said there are no stupid questions needs to familiarize themselves with

In "A blueprint for the closure of Guantanamo Bay" Jack Goldsmith and Benjamin Wittes tackle a tricky conundrum: how best to close Gitmo such that it may as well remain open? According to Goldsmith and Wittes there are some truly vexing problems facing Obama if he wants to close Gitmo, chief among them how he can continue to perpetrate human rights abuses and weild pre-Magna Carta powers. For them the closing of Gitmo is only acceptable if it's a purely cosmetic change.

In order to help the readers of Slate understand how best to maintain the status quo under the thinnest veneer of change they've prepared a list of moronic questions that entirely (and purposely) miss the point of closing Gitmo. I've selected a couple of the silliest ones for our reading pleasure.

Stupid question #1:

Under what theory can detainees who are not tried remain incarcerated?
Detainees convicted of crimes will be incarcerated for the term of their sentence. But detainees not yet charged or who can't be charged must be held in some form of extra-criminal detention.

"Under what theory can detainees who are not tried remain incarcerated?" Oy. (Insert sound of hand slapping forehead) This question can be reformulated as "Bill of Rights -- huh what's that?"

"But detainees not yet charged or who can't be charged must be held in some form of extra-criminal detention."

Because, you know, they're totally guilty. So guilty that we can't possibly try them for lack of evidence. The authors don't even entertain the notion that people who can't be charged with crimes should be released -- that would make closing Gitmo something other than a meaningless symbolic gesture.

Stupid question #2:

What about acquittals and short sentences?

How about "sucks" or "them's the breaks" or "yeah, what about them?" In a working justice system acquittals happen. But that is apparently unacceptable. Because, you know, these people are all totally guilty.

Any of the trial systems above might result in short sentences for or the acquittal of a dangerous terrorist.
This conundrum gives the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates. Should the government loosen the rules for trial to make convictions easier, or should it rely more heavily on noncriminal detention? Hard call.

Should the government railroad detainees through a kangaroo court or not even bother with trials at all? Hard call. Goldsmith and Wittes are pondering how best we can create a Justice system that maintains only the thinnest veneer of justice. The entire piece is devoted to keeping Gitmo open in spirit.

When Christopher Hitchens tackled the question "How Did I get Iraq Wrong" he answered with "I didn't." Similarly the answer Goldsmith and Wittes want to give to "What's the best way to close Guantanamo?" is "leave it open." But unlike Hitchens, who revels in iconoclasm, Goldsmith and Wittes are compelled to pay lip-service to shifting political winds.

At least the Hitchens approach is less weaselly.

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