I agree with President Obama. It’s unacceptable that we, the US, have kept people as prisoners for as long as ten years without trial or any other procedure that could conceivably result in their release or conviction.

Let me say first that it’s not an issue of toughness or not toughness. I, for one, think it’s ridiculous to invoke the Geneva Conventions to protect people who burn women and children alive and who assassinate while wearing civilian clothing. I am also in favor of making their lives difficult, of increasing the hardship of doing their disgusting job any way we can. That would include making a public announcement that specific individuals may be volatilized from the sky anytime, any place. That sure would create a circle of isolation around them. I would also be in favor of including an option to surrender and be investigated (by us.) I don’t understand why this option does not already exist.



There are three purposes for keeping people locked up. One is to secure them while they await trial. The lock-up time in this case should be as short as technically possible. The second reason is that they are serving a prison term, a punishment imposed after a conviction of guilt in a well-described, appropriate procedure.

The third reason to prevent people from leaving is to keep them out of any situation where they can hurt others. Thus, the classical treatment of prisoners of war is to secure them until there is peace. No punishment ought to be intended. In fact, there is international agreement that such prisoners should be treated the same as the soldiers of the nation detaining them. Again, to punish people, you have to try them formally and to find them guilty of something. That’s true even if the accused are prisoners of war, for example. A prisoner of war may also be guilty of crimes. The two issues are separate. A civilized society should not allow its collective judgment to drift from one situation to the other.

I often hear comments among my fellow conservatives that obscure the existence of a line separating the task of punishing terrorists from the mission to keep them out of our harm’s way. I also hear an absence, the absence of realization that the issue if not one of some Middle-Eastern strangers’ – many of whom openly hate us – rights. It’s about our rights. (It always is, in the final analysis.) Confinement to a small space open has not chosen is experienced as punishment regardless of intent. It’ s even the most severe punishment several other civilized societies have. I agree with President Obama that we should not punish severely individuals who may be completely innocent. They may be people who are no more guilty of violence against the United States and against Americans than I am. (Repeat this sentence. Make th”I” yourself.” )

I suspect many of my fellow conservatives believe in their hearts that those detained by American forces because they are suspected of terrorism must be at least a little guilty, or guilty of something. Of course, there is no such thing as being a little guilty in our legal tradition. The idea belongs in totalitarian societies.

If we need to control some people’s movements for the third reason, to prevent from from doing us harm, in a war that may never end, we owe it to ourselves as a nation to develop inventive solutions that don’t confuse our need to be safe with the imposition of undeserved punishment. I can think of two such solutions .

We could develop a place to keep them that does not resemble prison except that it should be guarded from intrusion by outside forces. High-tech surveillance methods on the periphery of such a place connected to missiles, for example come to mind. I am thinking of a sort of armed Club Fed. It could even be a Guantanamo Two, a decent resort where the detainees could lead a life more closely approximating normal life. Inside the resort, they would govern themselves as befit people who are not in jail or prison. There is no reason why they couldn’t have a normal family life with spouses and children. I can hear some already snickering about the cost of such a scheme. It’ s extremely unlikely that it would be more expensive to maintain than the highest security jail this country has ever had. It would also be less expensive than war, any kind of war.

There is another, a sort of libertarian solution to the problem of neutralizing those we suspect of wishing to do us harm. We could try to free them on bail. Let me explain: There are millions of individuals around the world and thousands of organizations who profess to be terminally disgusted by the very existence of Guantanamo prison. Among the latter are hundreds of Muslim non-government organizations (NGOs). Some of the latter have thousands and tens of thousands of members. The US government could negotiate the transfer of custody to private NGOs of inmates who have been held for several years and who are not slated to be tried. The US government could ask for a vertiginous bail amount, millions or even billions of dollars per inmate so transferred. The bail money would be refunded after a determined number of years (say, when the detainee reaches a certain age) if the detainee had not been killed or recaptured in the process of conducting or of supporting terrorist activities.

Either some would take up this offer of privatization of custody or not. If the offer were taken, we would at least have put some distance between us and the practical problems of dealing with people we think dangerous. (This includes, as I write, the horror of force-feeding.) Relapses of terrorists would become more publicized than they are now, less subject to the constant suspicion that the US is manipulating appearances. At the very least, if there was no no rush to adopt Guantanamo detainees, it would be nice to point out the hypocrisy of our critics.