Detention and Denial: The Case for Candor after Guantanamo

Overview

"Our current stalemate over detention serves nobody—not the military or any other component of the U.S. government that has to operate overseas.... It is a system that no rational combination of values or strategic considerations would have produced; it could have emerged only as a consequence of a clash of interests that produced a clear victory for nobody."—from the Introduction

Benjamin Wittes issues a persuasive call for greater coherence, clarity, and public candor from the...

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Overview

"Our current stalemate over detention serves nobody—not the military or any other component of the U.S. government that has to operate overseas.... It is a system that no rational combination of values or strategic considerations would have produced; it could have emerged only as a consequence of a clash of interests that produced a clear victory for nobody."—from the Introduction

Benjamin Wittes issues a persuasive call for greater coherence, clarity, and public candor from the American government regarding its detention policy and practices,
and greater citizen awareness of the same. In Detention and Denial, he illustrates how U.S.
detention policy is a tangle of obfuscation rather than a serious set of moral and legal decisions. Far from sharpening focus and defining clear parameters for action, it sends mixed signals, muddies the legal and military waters, and produces perverse incentives. Its random operation makes a mockery of the human rights concerns that prompted the limited amount of legal scrutiny that detention has received to date. The government may actually be painting itself into a corner, leaving itself unable to explain or justify actions it may need to take in the future. The situation is unsustainable and must be addressed.

Preventive detention is a touchy subject, an easy target for eager-to-please candidates and indignant media, so public officials remain largely mum on the issue. Many Americans would be surprised to learn that no broad principle in American jurisprudence actually prohibits preventive detention; rather, the law "eschews it except when legislatures and courts deem it necessary to prevent grave public harm." But the habeas corpus legal cases that have come out of the Guantánamo Bay detentionfacility—which remains open, despite popular expectations to the contrary—have addressed only a small slice of the overall issue and have not—and will not—produce a coherent body of policy.

U.S. government and security forces need clear and consistent application of their detention policies, and Americans must be better informed about them. To that end,
Wittes critiques America's current muddled detention policies and sets forth a detention policy based on candor. It would set clear rules and distinguish several types of detention, based on characteristics of the detainees themselves rather than where they were captured. Congress would follow steps to "devise a coherent policy to regulate the U.S. system of detention, a system that the country cannot avoid developing."

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Editorial Reviews

From the Publisher

" Detention and Denial is a clear account of what's wrong with American detention policy. Benjamin Wittes has been speaking clearly about detention, a subject many policymakers and political leaders have not wanted to address. This brief volume brings it all together. Wittes offers a compelling argument about what our failure to act means for our own nation's security. Those wanting to learn more about Guantánamo and the law of counterterrorism should read this book."—U.S. Senator Lindsey Graham (R.-South Carolina)

"As always, Benjamin Wittes brings pragmatism and a refreshing honesty to a subject which is usually wrapped in layers of ideology, obfuscation, and deceit."—Anne Applebaum, Washington Post

"For the past decade, Ben Wittes has been one of America's most serious and perceptive students of the intersection between law and counterterrorism. Detention and Denial is a balanced, tough-minded appraisal of what needs to be done to transform our ad hoc detention policy into a sustainable architecture that accommodates security imperatives and the rule of law. This should be on the top of the reading list for all three branches of government."—Michael Chertoff, former U.S. secretary of homeland security

"[Wittes outlines] with clarity and brevity the current state of preventive detention and why a considered position must be taken in relation to its future, rather than continuing the present approach of lurching from legal crisis to legal crisis."—Law and Politics Book Review

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Product Details

  • ISBN-13: 9780815704911
  • Publisher: Brookings Institution Press
  • Publication date: 12/21/2010
  • Pages: 160
  • Sales rank: 1,342,357
  • Product dimensions: 5.70 (w) x 8.50 (h) x 1.00 (d)

Meet the Author

Benjamin Wittes is a senior fellow in Governance Studies at the Brookings Institution. He cofounded and is the editor-in-chief of the Lawfare blog and is a member of the Hoover Institution's Task Force on National Security and Law. He is coeditor with Jeffrey Rosen of
Constitution 3.0: Freedom and Technological Change (2011), and editor of Campaign 2012: Twelve Independent Ideas for Improving American Public Policy (2012), both published by Brookings.

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Read an Excerpt

Detention and Denial

The Case for Candor after Guantánamo
By Benjamin Wittes

Brookings Institution Press

Copyright © 2011 THE BROOKINGS INSTITUTION
All right reserved.

ISBN: 978-0-8157-0491-1


Chapter One

Current U.S. Policy

By the end of Barack Obama's first year in office, the new president's promise to close Guantánamo had become an albatross around his neck. In numerical terms, at least, he had made relatively little progress toward emptying the facility. His much-vaunted order to bring detainees to trial had produced only a single indictment in federal court. Military commission proceedings moved forward at the pace of a glacier—and, as they always had, involved only a small percentage of detainees. Diplomatic negotiations regarding the repatriation and resettlement of detainees progressed intermittently. A process that in the exuberance of the transition and the first days of his administration the president had promised to finish within a year would drag out indefinitely.

What's more, the project itself had become controversial, with Republicans discovering an ideological commitment to Guantánamo and rallying behind it. Magnifying the ranks of the opposition was NIMBYism in Congress, where many members felt far less strongly about the underlying issues associated with detention than about the need to make sure that detainees came nowhere near their districts. Moreover, Congress slapped a series of restrictions on the president's latitude in resolving detainee cases. New laws barred him from bringing detainees to the United States except for criminal trial and required a waiting period and extensive congressional notifications before the administration could ship any detainee abroad. The glib slogan "Close Guantánamo" had, for the first time, met its political match: a fierce commitment on the part of a broad political constituency to not merely maintaining detention operations but to doing so at that particular naval base.

That was a big change over a remarkably short period of time. George W. Bush, who created the facility, had long said that he would like to be able to close it, and his administration had worked assiduously to shrink it, ultimately removing more than 500 of the nearly 800 detainees who had ever been held there. During the 2008 general election campaign, closing Guantánamo had been a matter of political consensus between the two presidential candidates. Senator John McCain, like Senator Obama, promised to shutter the facility. Even during the primaries, the press had largely treated Mitt Romney's promise to double Guantánamo's size not as a serious proposal but as mere political pandering to the hard right, and the idea never availed Romney much as a candidate in any event. The slogan "Close Guantánamo" reflected the endpoint of a policy on which a vast swath of the political spectrum agreed, and that swath also agreed, in broad strokes, on the means: freeing detainees for whom arrangements could be made that did not involve continued U.S. custody, trying detainees who could be brought to trial, and winnowing down the population as much as possible without taking undue security risks.

Yet the slogan also carried an unhealthy degree of ambiguity, for neither Obama nor McCain ever said quite what he meant by it. The promise to close Guantánamo, like many political promises, conveyed different meanings to different constituencies— people heard in it what they wanted to hear. To many of those on the political left, for example, closure signaled abandonment of noncriminal detention and, more generally, a return to the law enforcement model of counterterrorism operations. To those concerned with harmony in U.S. transatlantic relations, it signaled a meeting of minds with Europe over a festering sore in our ties with our closest allies. And to many people offended by a detention site chosen specifically to evade the jurisdiction and scrutiny of federal courts—a problem that those same courts had already addressed—it signaled a re-embrace of the rule of law and an abandonment of a kind of offshore-banking model of counterterrorism detention.

The phrase "Close Guantánamo" can mean any of those things. It also can mean none of them. Indeed, the promise to close Guantánamo, which Obama and McCain both embraced, actually concerned only a single detention facility. Neither candidate promised to abandon noncriminal detention more broadly, to free everyone who could not be charged with a crime in a federal court, or to bring other overseas detention facilities under the purview of U.S. judges. Technically, either man could have satisfied his promise by moving every detainee from Guantánamo to prison ships at the mouth of Guantánamo Bay. Only in implementation would the promise acquire real meaning.

We will never know what McCain's effort to give meaning to the phrase might have looked like. But during Obama's first year in office, the new president clarified his meaning with relative precision. (For whatever it's worth, I suspect that McCain's efforts would have looked similar; any effort to close Guantánamo would have been deeply constrained by circumstances.) It is well worth focusing briefly on that meaning to illuminate the allure of making obfuscation and denial the centerpiece of contemporary detention policy. For in making Guantánamo's closure a central national policy objective, Obama embraced denial as a cornerstone of the future U.S. approach to detention. To make that point vivid, let's start by outlining what "Close Guantánamo" turned out not to mean to Obama.

First, to the disappointment of those on the political left but to nobody else's surprise, it did not signify the end of noncriminal detention. While the new administration has modestly adjusted the legal theory under which it conducts military detentions and trivially adjusted the definition of the category of people whom it claims to have the power to lock up, it has by no means forsworn the power to hold suspected al Qaeda or Taliban fighters without criminal charge for the duration of the current conflict. Obama, in fact, reserved that option from the beginning. His original executive order on Guantánamo's closure did not explicitly mention continued noncriminal detention as a possibility, but it made a point of not foreclosing it either.

The executive order required a review of each detainee's case, looking at "whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States" and if not, "whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed"—preferably in U.S. federal courts. But the order also contemplated that there might be people whom the government could neither transfer nor prosecute and that some other arrangement—what it euphemistically called "Other Disposition"—would be needed for such cases. For those, it directed simply that "the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals."

As the months wore on, it became increasingly clear that "other disposition" meant long-term detention without trial. Eventually, the administration admitted as much, acknowledging that forty-eight detainees would be neither released nor tried. That number, however, low-balled the real figure, for it excluded a group of nearly sixty Yemenis whom the administration would like to send home—either in the short term or as conditions in that country improve. Yet the administration is not repatriating Yemenis right now, and evidently conditions there are not improving. The figure also excluded those slated for trial whose trials will, in practice, never take place because of imperfect evidence or legal difficulties. So at least for the time being, the number of long-term Guantánamo detainees is unlikely to dip below 110. And in the absence of progress on Yemen, it will sink that low only if the government can find a home for every detainee slated for transfer.

None of this should remotely surprise anyone who has studied this issue without ideological blinders on. Even the number of detainees that the government would be left holding after review was, in a back-of-the-envelope kind of way, entirely predictable. In the summer of 2008, testifying before the Senate Judiciary Committee without access to any classified information, I offered the following rough guess of what the residual detainee population would be:

Nobody outside of the executive branch knows exactly how many current detainees are too dangerous to release yet could not face criminal charges in federal court—because they have not committed crimes cognizable under American law, because evidence against them was collected in the rough and tumble of warfare and would be excluded under various evidentiary rules, or because the evidence is tainted by coercion. Without access to a great deal of material that remains classified, one can only guess how many such detainees there are. But the number is almost certainly not trivial. Even under the somewhat relaxed rules of the Military Commissions Act (MCA), military prosecutors have estimated that they might under ideal circumstances be able to bring to trial only as many as 80 detainees. Excluding those current detainees already cleared for transfer from Guantanamo, that still leaves roughly 100 whom the military deems too dangerous to transfer yet against whom charges are not plausible. Even if we assume the military is being hopelessly conservative in clearing detainees for repatriation, there is almost certainly still a gap. That gap involves dangerous men who want to kill Americans.

The "roughly 100" figure corresponds almost exactly to the residual population that the Obama administration finds itself stuck with after the Guantánamo review. I quote this testimony not to highlight my own perspicacity, for the truth of the matter is that the prediction required none. That any administration, regardless of party, would ultimately balance security and political risk in a fashion that would necessitate some minimal detention authority was obvious even then, though many observers denied it. And while improved conditions in Yemen might at some point narrow the gap, a gap will remain, as the administration now concedes, and the government will need some noncriminal detention authority to fill it.

Second, "Close Guantánamo" clearly does not mean the end of detention without judicial due process protections—or the right of counsel—in a legal black hole beyond the supervision of federal courts. Guantánamo is the most public face of U.S. detention policy, but it is far from unique among detention sites in having been insulated from judicial scrutiny. Indeed, the several hundred people detained there without judicial supervision at the outset of the war on terror constituted only a tiny fraction of the tens of thousands of people detained in Iraq and Afghanistan under various authorities within the laws of war. The detention facility at Bagram was and still is much larger, and at different points various sites in Iraq housed vastly larger numbers of detainees. Detention sites abroad still exist, and they are no more subject to judicial supervision or process than they were before the president initiated Guantánamo's closure. Indeed, while the Obama administration has created new internal review mechanisms for detainees at Bagram, it has continued to defend the propriety of resisting their supervision by the courts. In May 2010, the D.C. Circuit Court of Appeals affirmed the administration's claim that no U.S. court had jurisdiction over Bagram detainees. Closing Guantánamo, in other words, does not signify a general embrace of extensive judicial process for wartime detainees.

Third, at least so far, closing Guantánamo also has not signified an effort of the type that I have urged to place detention on a more solid legal footing by enshrining it in statutory law and thereby both constraining and legitimizing its use. For a time, that seemed to be what Obama meant to do. At a major address at the National Archives in May 2009, he declared that

our goal is to construct a legitimate legal framework for the remaining Guantánamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution [emphasis added].

It was a breakthrough statement about detention for a U.S. president, the first time that either Obama or his predecessor had described the future of detention policy in terms of crafting a legal regime to authorize and regulate detention. Unfortunately, within a few short months, the administration had dropped that particular ball. It made it clear that it did not mean to seek legislation after all; instead, it meant to continue to rely on a vague congressional authorization to use military force against al Qaeda and the Taliban as its legal basis for holding the enemy—an authorization that does not even mention detention, let alone set rules for it. It would instead allow the rules for detention to emerge through habeas corpus challenges at Guantánamo, rather than through any deliberative legislative process. The result, in short, was that closing Guantánamo would imply no change in the legal status of any detainee. Bringing Guantánamo detainees to the United States—if and when that happened—would neither grant them any more judicial review than they received before nor in any significant respect change the character of the review. It would, in fact, change neither the substantive rules nor the procedures associated with detention—just the location.

So what then is Obama really saying to the nation and to the world when he declares that he will close Guantánamo—or, rather, when he declares its closure to be a matter of national policy to be effectuated in due course, though by no specific date? If he is not renouncing detention as a practice by insisting that all military detentions be supervised by the courts or trying to alter the legal basis for detention, what exactly does "Close Guantánamo" mean? The answer, if we are honest about it, is that to close Guantánamo in the absence of a larger rethinking of U.S. detention policy is a complicated symbolic gesture, one replete with conflicting signals. On the one hand, it increases accountability in the U.S. practice of detention, bringing people home whom we now store off shore. It retires a symbol that damages us abroad and damages our self-image. And it signals to the world that we share the values that gave rise to the anxieties over the facility in the first place.

Yet it does all of that by embracing another symbolic element— one that the United States should not so easily accept. It embraces the notion that detention is a matter of shame, to be conducted, for almost all detainees, as invisibly as possible. The administration intends, at some point, to move the dwindling population of this single detention facility to a detention facility in Illinois in the hope that the Illinois facility will be less of a diplomatic sore point than Guantánamo has been. In other words, it means to close the most visible symbol of U.S. detention policy—accepting at some level that there is something lawless and disreputable about it. In exchange, it asks the world to forget about the much larger number of detainees elsewhere, whom we will not talk about if the world doesn't talk about them.

Closing Guantánamo, in other words, is not a repudiation of detention. It is a repudiation of detention at Guantánamo, a repudiation of detention in the open. Obama may or may not take a bit more risk than the Bush administration did in releasing some detainees. He means to bring more of the remaining detainees to trial than did the prior administration, and, at least initially, he tended to favor federal courts over military commissions as the forum for doing so. But the most significant change has been, in fact, geographic and symbolic. And the symbolism is very peculiar.

I have long argued for a policy focused on rules, not facilities, on the theory that where a nation detains its adversaries doesn't matter nearly as much as how it does so. As a result, I have no particular commitment to maintaining Guantánamo and have never argued against closing it. While it has certain logistical and legal advantages over alternative facilities in the United States and the costs associated with replacing it will not be trivial, those who have to represent U.S. foreign policy abroad describe Guantánamo with near unanimity as a problem for them in the exercise of their duties, and I do not resist the notion that it has outlived its usefulness.

(Continues...)



Excerpted from Detention and Denial by Benjamin Wittes Copyright © 2011 by THE BROOKINGS INSTITUTION. Excerpted by permission of Brookings Institution Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Contents

Acknowledgments....................vii
Introduction....................1
1 Current U.S. Policy....................13
2 The Mythology and Reality of Preventive Detention in the United States....................33
3 The Emerging Law of Detention....................59
4 The Problems That Denial Cannot Solve....................94
5 The Case for Candor....................111
6 Conclusion....................139
Notes....................147
Index....................153
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