The images from Libya are horrifying: Abdel Basset Ali al-Megrahi, the only person ever convicted for the bombing of Pan Am 103, has returned home to a hero's welcome. Since al-Megrahi is dying of prostate cancer, a Scottish judge released him on "compassionate" grounds.
The United States strenuously objected to al-Megrahi's release. 189 Americans died on Pan Am 103, but the United States is powerless to stop the release, since al-Megrahi was prosecuted and jailed in Scotland. The United States stands by helplessly as one of the world's most vicious terrorists is allowed to die in the comfort of his own home.
The images of al-Megrahi's triumphant return to Libya are particularly galling since the vast majority of al-Megrahi's victims were American nationals. If al-Megrahi had been tried, convicted, and jailed in the United States, he would die where he belongs: in a jail cell.
Moreover, if Congress does not relent on its refusal to allow the transfer of Guantanamo detainees into the U.S., we may well see terrorists who have killed Americans released to heroes' welcomes in the future.
After President Obama pledged to shut down Guantanamo, Congress passed legislation prohibiting the transfer of any ex-Guantanamo detainees to the U.S. mainland. As a result, the Obama administration is now feverishly negotiating with foreign countries to take Guantanamo detainees. Once these detainees are transferred, the United States will lose control over them. Even if some are convicted for crimes against Americans, we will have no say as to their sentences, paroles, or future "compassionate release."
There may well be innocent men on Guantanamo. We thus need a full and fair process to evaluate their respective guilt, and thereby release the innocent. However, Guantanamo also likely holds terrorists who helped plan and carry out attacks against Americans.
If these men are convicted in a full and fair proceeding, they will face significant jail sentences, just like al-Megrahi. These sentences should be served in the United States, not overseas.
If instead all Guantanamo detainees are sent abroad, the United States will lose jurisdiction over them. In a few years, for example, self-proclaimed 9-11 mastermind Khalid Sheik Mohammed could be released by a foreign nation on "compassionate" grounds. Moving Gitmo detainees abroad is an easy course of action now, but it has troubling long-term consequences: the loss of U.S. control over the punishment of those detainees who, after due process, are convicted of killing Americans.
In fairness, federal law allows for compassionate release. In particular, 18 U.S.C. § 3582(c) allows for early release when "extraordinary and compelling reasons warrant." The November 2007 Federal Sentencing Guidelines defined these reasons as including "terminal illness," such as al-Megrahi's. However, such releases in practice are granted rarely, and even less frequently for violent crimes.
Scotland's release of al-Megrahi is wrong at every level. Congress should learn from this troubling incident, and allow the President to jail foreign terrorists in the United States. Guantanamo should be closed, but the solution is not to outsource to other nations the punishment of convicted terrorists. After a fair trial, those who have killed Americans should be punished by the American government.