Guantanamo Bay and Israel
by Jonathan Rosenblum
London Jewish Tribune
July 1, 2005
Ever since 9/11, it has been clear that Israel's war with Palestinian terror is only one theater of a much larger war between Islamic terror and the West, and the Israeli-Palestinian conflict but a microcosm of a larger struggle. The penny has not yet dropped for Europe on this point. European popular opinion views Palestinian terror as largely justified, even as Europeans cower before the Moslems in their midst and chew their nails about a nuclear-armed theocracy in Iran.
By contrast, President Bush has been much more forthright in recognizing the parallels between Israel's situation and that of his own country. He has on many occasions made it clear that the Palestinians cannot expect to move towards realization of their political goals as long as they maintain what former Chief of Staff Moshe Ya'alon terms their "gang-based" reality.
Unfortunately, these flashes of recognition have been intermittent. At other times – sometimes in the same speech – the President has reached conclusions completely at variance with his original premises, as if the Arabists at the State Department had suddenly activated a computer chip in his brain. His April 4, 2002 speech on the Middle East provided the classic example of such a war with himself.
That speech followed a month of terrorist carnage in Israel, in which over 130 Israelis lost their lives – the equivalent, proportionally, of two 9/11s. Most of those casualties came after Israel withdrew troops from West Bank cities and eased travel restrictions on Palestinians, in advance of the visit to the region of U.S. Special Envoy Gen. Anthony Zinni.
Bush began quite sensibly: "No nation can negotiate with terrorists. For there is no way to make peace with those whose only goal is death." But then he veered into a complete non-sequitur by demanding that Israel begin withdrawing immediately from Jenin and other West Bank cities occupied in Operation Defensive Shield after the Seder Night Massacre in Netanya. Bush effectively said, "Israel is confronted with terror on an unprecedented scale, against which it has a right and duty to defend itself, therefore Israel should withdraw immediately less than a week into a complex military operation designed to wipe out the Palestinian terrorist structure."
At that very moment, American military operations, designed to uproot the Taliban and Al-Qaeda, were already in their seventh month in Afghanistan. The terrorists against whom the United States was fighting in Afghanistan posed considerably less immediate threat to American citizens half-way around the globe than Palestinian terror poses to Israel citizens.
In the same speech, Bush noted further that the Palestinians had consistently failed to live up to their commitments under Oslo, renounce terror, or recognize Israel's right to exist. And then, in his second non-sequitur, Bush then urged Israel to resume a political process consisting of Israeli territorial concessions in return for the same worthless Palestinian promises to rein in terror.
SIMILAR FAILURES TO note the parallels between Israel's situation and that of the United States stand out today. In particular, the United States pressures Israel to release captured Palestinian terrorists, even as it detains those captured in Afghanistan.
For the past three years, the Bush administration has been subject to intense criticism on account of the Guantanamo Bay prison, in which 540 suspected Taliban or Al-Qaeda fighters are being held. Demands to close Gitmo are heard in the United States Senate, and at least one Senator went so far as to compare the treatment of prisoners there to the worst atrocities of the Nazis.
The United States Supreme Court ruled last year that prisoners were entitled to challenge their incarceration in United States federal courts. Each of the prisoners has had a status review hearing before military tribunal, at which they were given an opportunity to challenge the factual basis for their classification as enemy combatants. Over 30 detainees have been released on the basis of those hearings.
Despite these legal protections, most of those incarcerated at Guantanamo Bay are likely to remain in custody for a very long time – perhaps forever. They do not fit the paradigm to which the Geneva Accords were meant to apply: uniformed soldiers fighting under the flag of an enemy state. The Geneva Accords anticipated the exchange of captured soldiers at the end of hostilities. But what happens when the enemy combatants serve no state, but rather shadowy terrorist networks, with which hostilities were never formally declared and to which no end can be anticipated? (Despite the inapplicability of the Geneva Accords to the Guantanamo detainees, prudence dictates, in most cases, that they be treated according to the relevant provisions of the Geneva Accords.)
Like enemy soldiers, terrorists captured far from America are not candidates for judicial trial. For one thing, the U.S. Penal Code was not written with them in mind, and there may be no relevant provision under which to charge them. Secondly, the circumstances of their capture are not conducive to proof beyond a reasonable doubt of any action on their part. The heat of combat does not offer many opportunities for the collection of evidence upon which to base a criminal prosecution. The most that will generally be known about any particular captive is the circumstances of his capture.
Because fighters belonging to the Taliban and Al-Qaeda or various other terrorist networks wear civilian garb and take refuge among civilian populations, the possibility of misidentification is considerably greater than it is with uniformed soldiers in traditional warfare. The "status review hearings" at Guantanamo Bay may weed out some of these cases of misidentification, but there will inevitably be mistakes. The alternative, however, of requiring the United States to establish beyond a reasonable doubt that those captured were indeed terrorists would exact far too high a cost, and result in the release of most of the detainees.
The U.S. government has no intention of releasing the detainees now or at any time in the foreseeable future. Many of those released would likely "re-enlist" with their former terrorist sponsors, or with another one of the proliferating list of such groups around the world. As long as the threat of Islamic terrorism remains high, the detainees continue to constitute a danger. And just as states do not generally exchange captured prisoners in the midst of an ongoing war, so there is no reason why the United States should return the detainees to the field of combat in the midst of a war.
The foregoing analysis is, of course, crystal clear to the Bush administration. The only question is: Why does the United States not recognize the parallel between those detained in Guantanamo and operatives of one or another Palestinian terrorist organization. At each stop and start of the "peace process," the first demand of the Palestinian Authority is for the release of all Palestinian prisoners. And that demand is often supported – at least in part – by the United States.
Inevitably Israel begins sifting between security prisoners in search of those with "blood on their hands" and those without, between those who have grown old and enfeebled and those who have not. But why should Israel be asked to be forthcoming on this score? And why should it matter whether the prisoners in question succeeded in killing Jews or not? The only question relevant question is: Were they operatives in organizations that have engaged in terrorist actions against Israel? In warfare, privates are also detained, and the length of their detention depends only on the duration of the war, not how many of the capturing state's soldiers they can be proven to have killed.
Every Israeli relaxation of travel restrictions is inevitably followed by new terrorist acts, such as the murder of two Israeli teenagers by Palestinian terrorists last week. And so too have many Palestinian prisoners freed by Israel as good-will gestures at America's behest come back to haunt us. Two weeks ago, Israeli forces arrested an Islamic Jihad member, who was among the 900 Palestinian prisoners recently released by Israel, in the midst of planning to carry out a suicide bombing in Israel.
The United States should stop pressuring Israel to endanger its own citizens in ways which it would never endanger its own.
Related Topics: Peace Process
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