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U.S.: The Case For Military Tribunals

Gaffney opposes closing the Guantanamo Bay detention center (epa) WASHINGTON, July 1, 2006 (RFE/RL) -- The Supreme Court has temporarily halted U.S. President George W. Bush's plans to convene special military courts to try the Guantanamo Bay detainees. RFE/RL Washington correspondent Heather Maher talked to a U.S. defense expert who believes this ruling was wrong, and that the special courts are essential to winning the war on terror.

Frank Gaffney heads the
Washington-based Center for Security Policy and was assistant secretary
of defense for international security policy in the Reagan
administration. He says a new kind of "totalitarian ideology" -- what
he calls "Islamofacism" -- is "bent on our destruction" and must be
fought accordingly.

What was your reaction to the Supreme Court ruling against the special military commissions?

Frank Gaffney: I personally think that the Supreme Court erred very significantly in its decision. That, most importantly, the ruling, as it stands now, would seem to confer on terrorists rights to which they're clearly not entitled: Rights to court proceedings and legal recourse that are not part of the Geneva Convention, as it is observed by the United States. And secondly, [rights] that I think are completely inappropriate, given the character of terrorists and their activities.

RFE/RL: Why does Bush believe that military tribunals are the best place to try terror suspects?

Gaffney: I think first and foremost the reason is that the administration appreciates that terrorists are not ordinary criminals, nor are they prisoners of war -- [a status] which confers certain rights and privileges, which people who do not wear uniforms, people who do not respond to a national command chain, people who conceal themselves among civilian populations, people who conceal their arms, are explicitly excluded from [in] the provisions of the Geneva Convention, as observed by the U.S.

In fact, President [Ronald] Reagan had an opportunity to agree to a protocol that would have extended coverage to such people, and explicitly rejected that idea back in the 1980s.

As a result, I think the [Bush] administration has correctly said that we need to have a separate and different kind of approach. Especially since some of the information that can be used to evaluate the danger posed by these people is not the sort of thing that is typically admissible or otherwise useable in normal court proceedings, whether in courts-martial in the military or criminal proceedings in the civilian system.

RFE/RL: Why not put suspects through courts-martial instead, where there would be no controversy over public exposure, or granting them the rights those trials accord?

Gaffney: Well, first of all they are not entitled to that kind of treatment. The reason the Geneva Convention, as observed by the U.S., does not give such protections to individuals who behave in ways that are inconsistent with the rules of war is that it poses a grave risk to civilians. If combatants can conceal themselves as civilians, can conceal their arms, can hide amongst them, it almost certainly invites attacks against civilian populations, which is not a desirable thing. And to the extent that it can be avoided, it is to be avoided, and we try to.

So this is about trying to avoid a compounding of the present danger created by international terrorism, which I think would arise by conferring on them a status they don't deserve and thereby rewarding them for terror.

RFE/RL: So when critics of the "Bush tribunals" protest that they don't offer adequate protection of a defendant's rights, you answer that these suspects don't have such rights?

Gaffney: Yes, that's my view. They certainly don't deserve these rights. I think what the president had tried to fashion was a different approach that would take in these realities and afford a measure of accountable judicial review for these individuals.

The court has now said that the way he did it was unacceptable because he didn't have congressional assent. My guess now is that he will seek, and obtain, congressional approval for proceedings of some kind conducted by military tribunals.

RFE/RL: And you do expect Congress will vote to give Bush that authority?

Gaffney: I do. I anticipate that there will be a debate within the Congress about what rights we think Al-Qaeda and other terrorists should enjoy in terms of judicial review, but my sense of it is that people in the Congress appreciate that the alternative, letting them go, is simply unacceptable and that the public would not cotton to the idea, or endorse or embrace the idea, of giving them the full protections of the normal criminal-justice system in this country.

RFE/RL: Why didn't the Bush administration go to Congress years ago -- after the attacks of September 11, 2001 -- to get this authorization, just in case? The president had to know that terrorists would be picked up during the military operations that were being planned.

Gaffney: My guess is he felt he had the authority within his responsibilities as commander in chief.

Common sense tells me in a time of war, when you're dealing with enemy combatants -- even those who don't conduct themselves as the laws of war dictate -- it's not an unreasonable position to take, that the president took.

RFE/RL: Is there any aspect of the way this administration is running the war on terror that you find fault with?

Gaffney: Of course. I would have counseled the administration to do a number of things differently. I think the administration has failed dismally in explaining to audiences, both at home and abroad, what the nature of this war is, and what the stakes are.

I've written a book with some of my colleagues, called "War Footing: 10 Steps America Must Take To Prevail In The War For The Free World" which tries to explain that this is, in fact, a war for the free world. That, like in the past, we confront today a totalitarian ideology -- we call it "Islamofacism" -- which is in many countries around the world, including in the United States itself. And to fight such an enemy requires both an understanding of its character -- that it is ideological in nature even though it has a sort of patina of religion over it that confuses people about its nature.

It must be challenged and defeated on that ideological -- or war of ideas -- level if you will, as well as where necessary, militarily.

RFE/RL: Isn't the Bush administration already doing this?

Gaffney: There are a host of techniques that we don't think the president has adequately utilized, starting with the mobilization of the American people themselves to wage war as we have in the past when confronted with totalitarian ideologies bent on our destruction.

So that's my main complaint really, about the administration. And I think a lot of the problems its confronting today -- to some extent with popular sympathies, or understanding, or support for its operations and activities, and certainly abroad -- arise from this failure to adequately describe and explain both the enemy we're confronting and the dangers of failing to defeat it.

RFE/RL: Lastly, do you think that the detention facility at Guantanamo Bay, Cuba, should be closed, if for no other reason than it has become a lightening rod of criticism for the United States and Bush's policies?

Gaffney: Oh, to the contrary. I think the facility at Guantanamo is going to be needed for the foreseeable future.

While it may be that some of the people there could be returned to their home countries if you had confidence that they would be treated fairly, and not simply released, my guess is that if we didn’t have Guantanamo, we'd have to create it someplace else.

I think the nature of this conflict is going to require a facility where you can hold people while you seek strategic intelligence from them, and ensure that they are not allowed to return to a status in which they can wage war against us again.

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