Forget what you heard or read about Guantanamo: American gulag, recruiting tool for al Qaeda, law-free zone. Think instead of Guantanamo as “a rule of law success story,” an off-shore prison camp that President Obama should embrace rather than criticize.
Those are the views at least of two experts who have worn white hats during the fierce debates over the policies established by the Bush administration and largely carried over by the Obama administration for holding suspected anti-American terrorists captured overseas.
Harvard law professor Jack Goldsmith played the role of good guy in the Bush Justice Department as head of the Office of Legal Counsel from October 2003 to July 2004. He has been rightly praised for rescinding the infamous torture memo approved by his predecessor that green-lighted the use of waterboarding and other “enhanced interrogation techniques” against a handful of “high-value” suspects.
Benjamin Wittes, a senior fellow in governance studies at the Brookings Institution, has done as much as any single individual to scrutinize post-9/11 detention policies and practices. He deserves credit in particular for meticulously refuting the Bush administration’s repeated depiction of Guantanamo prisoners as “the worst of the worst” of al Qaeda or Taliban members.
In a controversy with national security hawks on one side and civil liberties doves on the other, Goldsmith and Wittes have positioned themselves as owls, unwilling to sacrifice either security or liberty or to carry either to an extreme. So their views today, as Goldsmith set out in a recent law school appearance and Wittes wrote in a Brookings blog, warrant respectful consideration. Even so, Goldsmith is wrong to call current policies a success, and Wittes wrong to call on the president to embrace them.
Both Goldsmith and Wittes start with the political context that they say make closing Guantanamo an impossibility. It has been two years since Obama made his post-inauguration pledge to close Guantanamo within one year. A Democratic-controlled Congress balked at approving funds for closing Guantanamo in 2009, even before the uproar over a possible New York City trial of Khalid Sheikh Mohammed, the self-proclaimed architect of the Sept. 11 attacks. By May 2010, Congress had crafted provisions to bar bringing Guantanamo detainees to the United States for trial or transferring them to other countries without all-but-impossible to meet security conditions.
Obama complained of those restrictions even as he signed them into law on Jan. 7 as part of the Defense Department authorization for the current fiscal year. Where President Bush sometimes refused to bind himself to follow congressional restrictions on presidential power, Obama said only that he would seek to repeal the limitations and in the meantime try to “mitigate” their effects.
With Republicans now in control of the House of Representatives, outright repeal is a non-starter. Wittes, who has pushed some of his ideas on Capitol Hill in the past, proposes a deal. Obama should “embrace” Guantanamo and keep it open not only for the current prisoners but also for all future counterterrorism detainees captured abroad. In return, Wittes suggested, Obama should ask Congress to ratify military detention with the review procedures established for Guantanamo prisoners and to lift the restrictions he reluctantly signed into law.
As Wittes wanly concedes, “I do not know if there is a partner in Congress for this deal.”
Like Wittes, Goldsmith sees Obama’s pledge as unredeemable. “Guantanamo is not going to be closed,” he said in a keynote speech at a program at American University’s Washington College of Law on Feb. 18. “It’s not going to happen.”
Goldsmith also echoes Wittes’ point that the Guantanamo of today is not the law-free zone created by the Bush administration. Guantanamo prisoners can challenge their detention via habeas corpus in federal court thanks not to the president or Congress but to the Supreme Court. Obama has established administrative review procedures for prisoners who may still be held even after losing habeas corpus cases. In Goldsmith’s view, these are “unprecedented” protections for people held in military detention.
For Goldsmith, military detention at Guantanamo on these terms is the least bad of the actual alternatives for suspected terrorists. Civilian trials are ruled out, military commissions problematic, and transfer to other countries increasingly difficult. He worries most that in the absence of a clear detention policy, military and intelligence personnel may simply conclude that the best option on an undefined battlefield is to kill, not capture. That course, he says, is “not good for human rights, not good for intelligence collection, and not good for national security.”
The supposed dilemma seen by Goldsmith and Wittes is not, however, an inevitable aspect of the war on terror. The 48 Guantanamo detainees who have been deemed too dangerous to release but “not feasible for prosecution” are thought to be in that category mostly because of torture-tainted evidence inadmissible in civilian or military tribunals. With interrogation policies cleaned up as the Obama administration claims future detainees ought to be amenable to trial in one or the other forum.
Instead of real trials, Goldsmith and Wittes acquiesce in a system of detention for the duration of the no-end-in-sight war on terror with limited review first through habeas corpus and then by an administrative board. Whatever changes may have been instituted at Guantanamo, this is not a system that the United States can convincingly sell to a skeptical world as fair and just.
Postscript: In a respectful and thoughtful reply, Ben Wittes says that I underestimate the number of Guantanamo detainees who will never be tried and that I erred in attributing the impossibility of prosecution primarily to torture-tainted evidence. Under deadline haste, I did fail to check the Guantanamo Detainee Task Force Report’s explanation of the difficulties of prosecution, which primarily include evidence-gathering and charge-bringing problems. In my blog, I suggested torture-tainting will fade as a problem; Ben says those other issues will persist. I would hope that military and intelligence agents will do better in those regards in the future and thus that those problems too will recede. As to Ben’s other points, I will simply say that I could not hope for a better, wiser correspondent with whom to agree to disagree.