Ken Jost Says No to Embracing Guantanamo

Kenneth Jost of CQ Press and the Jost on Justice blog critiques Jack and me for our suggestions that it's time for President Obama to embrace Guantanamo:

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.

Most of the post is an admirably fair summary of our recent writings on the subject. The critique appears only at the end:

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.

I will write some thoughts in response to this point--a matter I discuss at some length in Detention and Denial--later today.