The pander-to-fear-du-jour for members of congress is a provision that would prevent the transfer of Guantanamo detainees to the US for any purpose, including for prosecution. Passage of this ill-founded measure could effectively put the nail in the coffin of efforts to end the failed Guantanamo experiment, perpetuating its legacy of arbitrary detention and detainee abuse. It would also leave little alternative but to either release people who should not be released, or detain them indefinitely without charge or trial, or try them in the universally discredited kangaroo courts known as military commissions, which have conclusively demonstrated their inability to try their own way out of a paper bag.
Human Rights First has correctly labeled this initiative as "tantamount to obstruction of justice."
Legislators who oppose the closure of Guantanamo and would support this measure fall in to one of two categories. They are either sincere defenders of national security who are woefully ignorant of the facts, or they are insincere Machiavellians attempting to force failure on the administration for political gain, at the expense of national security.
A quasi-related bit of news arose from the recent WikiLeaks dump of State Department cables. There, we learned that the US interfered with the judicial process and made veiled and not-so-veiled threats of damage to cooperative relations with Germany and Spain to discourage them from enforcing their own criminal laws against US CIA agents involved in kidnappings on their soil or of their citizens.
Question: Do you think the US would ever tolerate threats from other countries concerning the enforcement of our own laws over crimes on US soil or where Americans are the victim?
Whether the crime is terrorism committed by members of Al Qaeda and their associates, or its kidnapping, abuse and arbitrary detention of suspected terrorists committed by Americans, it's the failure of the US to enforce its own laws, rather than the enforcement by other countries of their laws, that threatens international cooperation.
The US has engaged in and declines to renounce the use of extraordinary rendition. It retains the option of sending people to Guantanamo to detain them indefinitely without charge or trial, or subject them to kangaroo court military commissions. It declines to hold accountable the architects and operators of its regimes of torture and arbitrary detention or to compensate their victims. It declines to specify the legal criteria for the claimed right to target for death persons suspected of terrorist activity.
If you were Spain or Germany, how would you react? Countries that take their human rights obligations seriously will be reluctant to share intelligence or consider the transfer of suspects to the US, due to the very reasonable fear of becoming complicit in such violations of international law.
If you doubt that, note this. There's a big difference between Europe and the US when it comes to human rights. Under the European Convention on Human Rights, members can be sued by victims. A special court created just for this purpose, the European Court of Human Rights, exists in Strasbourg France. The US, on the other hand, does not acknowledge or participate in any individual complaint or enforcement mechanism under international law for violation of its international human rights obligations. Historically, and standing alone among its European allies, the US has even denied having human rights obligations under the International Covenant on Civil and Political Rights for its conduct beyond US borders.
Given the importance of international cooperation in the fight against terrorism, the US would do better to promote national security by respecting international law and holding accountable those who violate it, rather than threatening other countries for doing so.
This post comes from Gabor Rona, International Legal Director