Margulies Responds to Jaffer

I appreciate Jameel’s response to my earlier post, as I appreciate the work that he and the ACLU have done in promoting transparency.  However, Jameel’s response largely reinforces my argument.  First, Jameel doesn’t deny the premise of my post: that the photos that the ACLU sought largely piggybacked on the Abu Ghraib revelations.  True, some were of different locations, but reports such as the 2008 Senate Armed Services Committee study had already amply documented this problem. It’s also true that the ACLU gave the Obama administration some credit for release of the OLC memos on interrogation techniques.  However, in the same report, the ACLU provided a misleading impression of the Obama administration’s stance on detention.  The ACLU claimed that the new administration wished to “enshrine permanently” the detention of terrorism suspects apprehended abroad, which the ACLU claims had been “widely considered extreme and unlawful” in the aftermath of September 11. The ACLU’s claim on detention policy is yet another example of moving the goal posts.    A wide range of experts, including NYU’s Ryan Goodman in this essay, have argued that the detention of terrorism suspects in a noninternational armed conflict is authorized under the law of war.  The Bush administration sparked criticism because it asserted that its Guantanamo detention decisions were not subject to judicial review.  The Supreme Court’s 2008 ruling in Boumediene v. Bush rejected this policy.  The Obama administration has proposed standards that inform judicial review of detentions at Guantanamo, and has also implemented procedures that ensure ongoing administrative review of detentions in Afghanistan.  This record may not be all the ACLU desires, but it is consistent with mainstream views of international humanitarian law.