This much seems certain: sometime next year, President-elect Barack Obama will close the terrorist detention facility at Guantanamo Bay, Cuba. What happens next is still unclear, but many of prisoners being held there will wind up in American courtrooms and prison cells, wreaking havoc in our legal and corrections systems.
Remember the Zacarias Moussaoui, the Al Qaida terrorist who was captured less than a month before the 9-11 attacks? Legal proceedings against Moussaoui dragged on for almost four years and, on more than one occasion, resembled a judicial farce. At various points, Moussaoui professed his innocence, declared himself guilty and even represented himself in court. His behavior was consistent with terrorist training manuals, which encouraged operatives to make a mockery of western judicial systems.
Multiply the Moussaoui trial by a factor of several hundred, and you've got some idea of what awaits the federal court system. But Mr. Obama remains undeterred, and in fairness, he may have little choice. As Ed Morrissey reminds us, the Supreme Court has, on two separate occasions, rejected the military tribunal system established by the Bush Administration.
But rather than pursue the matter in Congress (and the courts), the Obama team is determined to shut down Gitmo. Still, they haven't answered the most important questions: (1) how will the detainees be tried, and (2) can you sustain a viable intelligence system with analysts and operatives subject to questioning--and identification--in open court?
Those are but two reasons that abandoning the tribunal system (and closing) Guantanamo will eventually be regarded as colossal mistakes. But let's add one more to the list. Gitmo is tailor made for handling another problem that transcends international borders and jurisdictional authority.
We refer to pirates, particularly those operating along the coast of Somalia. While their recent hijackings of merchant vessels have gained international headlines, the piracy problem has existed for years. Making matters worse, there is the thorny issue of what to do with the pirates in the event they're captured.
Turn them over to the Somali government? What a joke. Somalia is the world's best example of a failed nation-state, with no functioning government and nothing approaching a viable criminal justice system, unless you count the Islamic courts run by an Al Qaida affiliate in the southern part of that country. The notion that Somalia could punish the pirates in ludicrous.
As for the nations--and navies--currently chasing the bad guys (and we use that term loosely), there are legitimate questions about jurisdictional authority. Could a U.S. Navy frigate, operating in the Gulf of Aden, detain pirates attacking a merchant vessel flagged under another nation's flag? And, what to do with them once they're taken into custody?
With the required international agreement, piracy suspects could be taken to Gitmo, detained there, tried by an international tribunal, and serve out their sentence--at the same, secure location.
Unfortunately, Gitmo has been forever tarred by administration critics, false claims of improper treatment and years of legal wrangling. We can't envision any scenario where the U.N. (or any other international body) authorizing the use of Guantanamo as a jail for international pirates.
Instead, the United Nations is suggesting tougher sanctions against Somalia as a way to curb piracy, and the Russians have suggested ground ops against pirate villages. Good luck with those proposals. The pirates operating around the Horn of Africa don't seem overly concerned.
On the issue of dealing with terrorism suspects, Attorney General Michael Mukasey is warning that Congress must address that issue again. In a column published in today's WSJ, Mr. Mukasey argues that the habeus corpus requirement for detainees has created a hodgepodge of inconsistent decisions in the federal courts. If Congress doesn't establish firm guidelines, he observes, we will be forced to choose between exposing intelligence assets in open court, or allowing terrorists to jump the immigration line and enter the United States.
Mukasey's op-ed offers three sound proposals for giving detainees a fair trial without crippling our legal system. Well worth a read. Ironically, the column appeared just hours after Mukasey collapsed while giving a speech to the Federalist Society in Washington. While Mr. Mukasey (who is 67) appears to be recovering quickly, keep him in your prayers. NRO's Andy McCarthy reminds us that Mukasey is a public servant of the first order. He has reprinted the text of Judge Mukasey's speech, which is equally superb.