Is Guantanamo Just a Legacy Problem?

Benjamin Wittes
Monday, December 27, 2010, 12:22 AM
The Washington Post published a typically thoughtful editorial today on the idea of an executive order to establish a review process for Guantanamo detainees who lose their habeas cases. Like me, the Post has mixed feelings.

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The Washington Post published a typically thoughtful editorial today on the idea of an executive order to establish a review process for Guantanamo detainees who lose their habeas cases. Like me, the Post has mixed feelings. On the one hand,
The proposal is laudable for introducing a measure of fairness into the process, but it is shortsighted because it would apply only to the 48 detainees at Guantanamo who the administration says are too dangerous to release but who cannot be tried in a federal court or military commission. What about the next 48? The proposal makes no provision for the likely capture of future suspects who may fit the same description. Removing lawful detention as an option could lock the administration into untenable and potentially dangerous situations.
The Post concludes by once again pushing for detention legislation:
The administration is concerned that a detention measure embedded into law could be wrongly used for offenses having no connection to terrorism. It worries that political opponents on Capitol Hill could insert odious provisions that the administration would be powerless to block. These are not trivial concerns, but they should be addressed by narrowly tailoring the law and displaying the level of leadership demanded in such matters. The administration should propose legislation, and its bill should cover future detainees as well as current inmates.
The Post condenses a lot of wisdom into these few spare sentences. I'd like to amplify on one of its points by excerpting a brief section of my new book, Detention and Denial: The Case for Candor After Guantanamo. Specifically, I think the Post is exactly right to reject the seductive claim that the legacy problem at Guantanamo can be severed from the problem of future detentions. It would be oh-so-grand and make life so much easier if we could simply treat the problem of Guantanamo as one of the errors  of the former administration--a problem we will never face again because we just won't behave that way in the future. We've learned our lesson, we are tempted to tell ourselves, and we'll deal with future captures through the criminal justice system. We'll get rid of most of the remaining Guantanamo detainees by trial or transfer anyway, and some were innocent goat-herders, whom we can just free. As a result, we're really just talking about a few dozen people we have to hold non-criminally, and we wouldn't want to pass a new extra-criminal detention law just for such a small group. As I say, it's a seductive argument, and it's seduced a lot of very smart people. But it's ultimately wrong. I describe why in the book in a passage that fleshes out the problem of what the Post calls the "next 48":
Anticipating the future of warfare is a parlor game that has made many a smart person look stupid in relatively short order, but one probably would not want to bet on even the short-term ability of the United States to avoid in the future the problems that led to Guantánamo and Bagram in only the recent past. Does anyone really believe that in its next great war the United States will see its forces arrayed along a front against the forces of another major state for any protracted period of time? While one can imagine such a scenario in the Taiwan Strait or the Korean Peninsula, that particular form of warfare is, generally speaking, on the decline. The nature of U.S. military power normally ensures that any such confrontation would either be deterred entirely by the threat of nuclear attack or would be over rather quickly—as were both recent confrontations with Saddam Hussein’s Iraqi army.
What might not end quickly is the insurgency that might follow an overwhelming U.S. victory. And, as we have also learned, what might not end quickly is the effort to pacify the failed states from which nonstate groups will continue to attack us. Those are precisely the situations that have given rise to our current detention problem. And I, at least, would not bet against them as a harbinger of the future of U.S. warfare.
There are some obvious candidates for the next arena in which U.S. forces will confront irregular forces committed to violating the rules of warfare—Yemen, Somalia, and parts of Pakistan chief among them. But one doesn’t have to have any special perspicacity to understand how foolish it is to assume that the next war will look nothing like the last two that the United States has fought in terms of the detention difficulties it will create. One simply needs to imagine that some such conflict seems at least plausible—if not, as I suspect, preponderantly likely. Once one accepts that argument, our society’s failure to . . . to make even rudimentary legal plans for that day . . . seems utterly self-defeating.
Construct whatever scenario you like for this conflict. Use whatever country name suits you; Fredonia will do if you prefer something that doesn’t end in “stan.” Give the enemy whatever ethnic and religious background seems plausible; you can make it drug cartels and narco-terrorists in Colombia or Mexico if you want to change the subject from the West’s confrontation with violent Islamism. On the other hand, if you prefer to take certain contemporary political conflicts to their logical conclusions, imagine that it’s Iran—a country of 70 million people, at least some of whom would not welcome U.S. forces as liberators. The only thing that matters is that enemy forces are irregulars—hard to identify and easy to confuse with the civilians among whom they will hide—and that they will fight in the context of some ungoverned territory. What will happen?
For starters, U.S. forces will capture a bunch of people. The vast majority of those people will be fighters of one sort of another or people directly supporting the conflict, but our forces will, of course, overcapture as well. The need to protect our forces, the fog of war, and the blurry line between combatant and civilian in such conflicts will all conspire to generate a certain margin of error in which some random people will get mixed in with the bad guys. Everyone will know that that is happening—just as everyone knows that civilians get killed and injured in military attacks.
Yet unlike collateral damage, wrongful detentions will bother us in an ongoing fashion. That will not be an altogether irrational response. Though the injury done to someone accidentally killed immeasurably exceeds the injury done to someone erroneously detained, the dead civilian is no more dead one year later than he was on the day of the errant strike. The injury is done, cannot be undone, and does not compound with time. By contrast, erroneous deprivation of liberty grows worse the longer that it goes on. It can be corrected, prospectively if not retrospectively. The victimization of the innocent detainee, though of a lesser order than that of the innocent person whom we kill, does pay compound interest. As a consequence, shortly after we begin capturing, we will as a society begin worrying.
Second, we will not avail ourselves of either of two mechanisms for relieving that worry. The criminal justice process will not be available, because the numbers of detainees will be too large and the evidence against many of them too poor, too impressionistic, and too probabilistic to support criminal cases. Importantly, however, we also will not avail ourselves of the out that the laws of war offer: treating all detainees as privileged belligerents or prisoners of war. We will not do that for exactly the same reasons that we have not done it in Afghanistan—one practical and the other spiritual. At a practical level, the intelligence gathering exigencies of the conflict will require greater flexibility in interrogating detainees than the Geneva Conventions tolerate for prisoners of war. At a spiritual level, we will not want to afford the captives any kind of honorable status. The United States has never gone along with the rest of the world’s decision to treat irregulars who fight by no known rules as the equivalent of honorable soldiers, and I have trouble imagining that it will begin to do so.
Third, there will be no government ready, willing, and able to assist us in handling the detainees. The very conditions that give rise to the conflict in the first place will ensure that there is no local government capable of helping. If one exists at all, it will be too weak, too corrupt, and too infiltrated by the bad guys to handle thousands or tens of thousands of detainees. European partners in the operation, meanwhile, will curiously abstain from this particular aspect of it. If they show up at all, they will show up to do the nice parts of the coalition project. They will leave all of the nastiest stuff to the United States—and detention will surely fall squarely in that category.
Fourth, as a consequence, U.S. forces will use whatever screening criteria they can cobble together—probably based on some combination of local conditions and the lessons learned in Iraq and Afghanistan. And they will end up making imperfect decisions as to whether to hold people based on the perceived threat that they pose at the time. Depending on how many detainees there are, how long we intend to hold them, and how good our information is, we may use a wide- or a fine-toothed comb. Either way, there will be errors in both directions.
And then, fifth, our forces will have to put the detainees somewhere. We know that they will not choose Guantánamo Bay, for precisely the same reason that the Bush administration did choose Guantánamo Bay: they will want to keep the detainees out of the reach of U.S. federal courts. If whatever legal doctrine then exists looks anything like current law, they will choose somewhere in the theater of combat. The case law, after all, now paradoxically makes habeas review more likely if detainees are removed from the theater and thus creates incentives to hold people in cruder, more dangerous theater facilities. They will have to choose a place that is operationally secure—somewhere the United States has near-total freedom of movement and answers to nobody else. And then, as night follows day, we will confront the question of whether the chosen facility really does lie out of the reach of the courts. We will earnestly ask ourselves whether it is more like the United States proper or more like Guantánamo (where the courts have jurisdiction), or more like Bagram (where the courts for now have no jurisdiction), or more like the Landsberg prison in Germany (where the courts had none in 1950). The longer we hold people, the more anxious we get about the compound interest that we are paying some of the detainees in injustice, and the more the waning of the conflict transforms serious threats into pathetic victims, the more we will second-guess our ad hoc choices and move the goal posts on ourselves.
We will, to lay the matter bare, have recreated Guantánamo. That is, we will have recreated the real Guantánamo—which is not the facility itself but the problems that gave rise to the facility, the problems that closing the facility will do nothing to address. Perhaps we will tolerate this new Guantánamo with greater equanimity than we did the first time; these things never traumatize one as much the second time around. Perhaps the world too will tolerate it a little more readily, particularly if we have at the key moment a Democratic president willing to beat his breast over the matter rather than a Republican president eager to thump his chest over it. But those are optical differences, not legal ones—and we shouldn’t count on them. The point is that we will face exactly the same problems that we faced in the first decade of the war on terror, and we will face them again precisely because we refused to adequately address the questions that gave rise to them in the first place.

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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