September 16, 2009
Rosh Hashanah, Yom HaDin and Guantanamo Bay
As Jews prepare themselves for Yamim Noraim (Days of Awe) and Americans recover from commemorating the Sept. 11 terror attack on the World Trade Center, many are conscious of another symbol of crisis — the Guantanamo Detention Center, whose fate is still uncertain. If the crumbling twin towers conjure vivid memories of America’s shock and pain, Guantanamo is a monument to our nation’s post-shock reaction after Sept. 11 — and the tough moral dilemmas that the shock brought to the surface.
On June 18, I attended a meeting for families of terror victims and three task forces that had been appointed by President Barack Obama to study the future of the Guantanamo Detention Center. The meeting focused on the legal dilemmas the U.S. government faces as it seeks to balance the security needs of the American people with the rights of detainees to contest the charges against them:
There was much bitterness expressed at that meeting. The words “it is all politics” were repeated again and again around the table as victims’ families expressed their frustration at what they saw as an artificially prolonged process marred with indecision and a lack of moral clarity. Family members spoke movingly of lost loved ones who had not been “given their human rights to argue their innocence.”
The rejoinders of sadness and frustration in that room still ring in my ears as we approach Yamim Noraim, the days where the age-old questions of divine justice, accountability, sin, mercy and repentance are pounding our minds for answers, answers that perhaps do not exist.
How would our sages resolve this conflict, I thought, between the victims’ call for justice and the principle of “innocent until proven guilty,” or Mishpat Echad Yihye Lachem KaGer KaEzrach (strangers and citizens shall have one law).
After that meeting, I wrote a letter to the task forces, an edited version of which appears below. I am not sure Hillel and Shammai would endorse my recommendations, but I surely tried to capture their sense of universal justice.
My name is Judea Pearl. I am the father of Daniel Pearl, the Wall Street Journal South Asia Bureau Chief who was abducted and murdered in Karachi, Pakistan, on Jan. 31, 2002.
The brutal and broadly publicized murder of our son, coupled with the fact that he was targeted for representing what America stands for, has turned him into an uncontested indictment of international terrorism on the one hand, and a banner for universal principles of open society on the other hand.
I hope, therefore, that my words will echo the sentiments of many of the victims’ families.
Gentlemen, if there is one thing that could soothe our pain it is the knowledge that our losses were not in vain but have been channeled in the most effective way possible toward the eradication of the evil of terrorism from the face of the earth.
I therefore believe that the main impact of your pending recommendations will be a symbolic one; it is not what you decide to do with the detainees that counts, but how you will frame your decision and what message the United States government will eventually send to the world.
That message should reach the ears of several audiences: terrorists, their sympathizers, their potential recruits, the world at large, and, most importantly, the next generation of Americans.
First and foremost, it must proclaim unequivocally that America is still committed to the war on terror that includes not merely active combatants or members of recognized terrorist organizations but, most importantly, the ideology of terror itself. In other words, America should affirm its commitment to fight any ideology that elevates perceived grievances above the norms of civilized society and thus licenses the targeting of innocent civilians to transmit political messages.
In the same way that our medical research institutions have declared a war on cancer — not on one tumor or another — your message should make it clear that America is not merely at war with al-Qaeda or the individual perpetrators of the crimes. It is the ideology of terrorism in its various incarnations that is our most fierce enemy.
With this objective in mind, your message must make it clear that detainees suspected of terror will be classified into a new legal category. Existing categories, which are derived from criminal law and conventional warfare, are not equipped to deal with the new threat that open society now faces.
America must muster the courage to define a new category and deal with it on its own terms. This is perhaps the most important recommendation that your task forces could make.
By crafting the Geneva Convention at the end of World War II, the international community demonstrated the need, wisdom and effectiveness of meeting new realities with new legal instruments. That same need now compels the international community to embrace a legal category, as you will define it, to deal with the new phenomenon of a war with no foreseen ending; an army with no honor and no respect for human life; an army with no uniform, no country, and no government; and an army that does not reciprocate agreements.
I am constantly reminded of the case of piracy, which became an international menace in the 1830s and was eradicated in a period of just a few years. This was only possible because of a radical change in international law that proclaimed piracy a crime not against a particular state, but against all mankind. As a result, a captured pirate could be tried, not in his country of origin, but “in any country where the offender may be found or into which he may be carried.” It is this kind of sweeping legal innovation that we and the entire civilized world are hoping to see emanating from your deliberations.
Whatever decision you make regarding the physical and legal handling of the detainees, it is imperative that going forward every potential terrorist would know that, if caught, he/she will not be entitled to privileges under existing legal categories, but be subject to a new set of rules.
The symbolic act of crafting a new category is more important than its actual content.
In addition to placing detainees in this new category, you should also recommend that they be tried in closed sessions. Detainees should not be given a platform to broadcast messages to their comrades or recruits back home. There is nothing more enticing to a would-be terrorist than the prospect of becoming the center of world attention, able to broadcast his/her grievances to every living room on this planet.
Our son was murdered — and his beheading videotaped — to satisfy such craving for publicity.
Your recommendation must make it clear to every would-be terrorist that, if caught, he will go down the path of total oblivion to the extent allowed by law.
The question of freedom of speech might enter into this issue, especially if media gag orders are considered. Here I am reminded of child pornography, which is not protected by the First Amendment, not for the purpose of limiting consumption, but for the purpose of curbing production. We live in a world where, unfortunately, a sizable segment of its population is aroused by cruelty. To prevent this cruelty from spreading, we must impose blackouts on much of what these detainees may wish to boast about in their testimonies.
We, who are living the war on terror every minute of our lives, wish you success in your difficult, yet historic task. The future of civilized society may depend on your decisions.
Hayom Harat Olam, Hayom Yaamid Bamishpat Kol Yetsurey Olamim. (Today He will put on trial all the world’s creatures.)
An earlier version of this article appeared in the Wall Street Journal on Sept. 12.
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