The GOP Pledge on Detention Policy
It is, I suppose, one of the perks of being in the opposition that one need not have anything useful, interesting, or responsible to say on key matters of policy. For years, it was the Democrats who had nothing interesting to say about detention policy, just the irritating and frivolous mantra, "Close Guantanamo." But at least in the current debate, the GOP Pledge to America takes a certain pride of place for irresponsible vacuousness in a generally irresponsible and vacuous debate.
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It is, I suppose, one of the perks of being in the opposition that one need not have anything useful, interesting, or responsible to say on key matters of policy. For years, it was the Democrats who had nothing interesting to say about detention policy, just the irritating and frivolous mantra, "Close Guantanamo." But at least in the current debate, the GOP Pledge to America takes a certain pride of place for irresponsible vacuousness in a generally irresponsible and vacuous debate. As best as I can tell, the entirety of the document's discussion of war on terror legal policy is the following (p. 38-39), though some discussion of border and visas security issues surrounds it:
Keep Terrorists Out of AmericaWe will prevent the government from importing terrorists onto American soil. We will hold President Obama and his administration responsible for any Guantanamo Bay detainees they release who return to fight against our troops or who have become involved in any terrorist plots or activities.
Demand an Overarching Detention PolicyForeign terrorists do not have the same rights as American citizens, nor do they have more rights than U.S. military personnel. We will work to ensure foreign terrorists, such as the 9/11 conspirators, are tried in military, not civilian, court. We will oppose all efforts to force our military, intelligence, and law enforcement personnel operating overseas to extend “Miranda Rights” to foreign terrorists.
That's right, folks. The consensus GOP position on some of the most vexing national security law issues of our day is a three part policy: (1) replacing the irritating and frivolous slogan "Close Guantanamo" with the equally irritating and frivolous slogan "Don't Close Guantanamo," (2) a blanket opposition to civilian court terrorism trials for any foreign terrorist suspects, and (3) a simmering hatred of Miranda v. Arizona. Do you feel safe now?
The most sadly laughable part is that is that Points #2 and #3 collectively bear the header, "Demand an Overarching Detention Policy." I'm not sure I know anyone who has argued seriously for a comprehensive detention policy who would describe those two principles as even correct, let alone comprehensive. Civilian court terrorism trials have a role to play, after all, and sometimes, advising a suspect of his rights is just good sense. And yeah, there's something missing from this comprehensive detention policy--to wit, a detention policy. Just as the slogan "Close Guantanamo" confused a policy for a venue, the slogan "Don't Close Guantanamo" does precisely the same thing. Under a heading promising a detention policy, the GOP document has literally nothing to say about when we should detain whom or what rules and procedures we should use in doing so.
One other thought: It is hard to oppose accountability for releases gone bad--and I don't mean to do so. Still, when the only thing one has to say about detention policy is that we'll hold the administration accountable for any terrorists it releases, one is really saying that one opposes releases under any circumstances. A measure of doubt, after all, will always attend a release. If we take the idea seriously that we should release detainees only when we know to a certainty that they pose no danger, the idea will paralyze us completely. This was not the approach of the Bush administration, and it should not be the approach of the current administration either. Rather, releases involve risk, and our policy in all matters related to terrorism should be one of responsible risk management. That's not the kind of thing one says in a campaign document, but it is a basic principle of governance.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
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