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The fundamental problem with Ben’s post is not in its critique of the arguments that have been offered by the two camps he identifies; rather, it’s in the pervasive assumption that the debate over closing Guantánamo only has these two camps–the folks who want to keep the detainees at Guantánamo in perpetuity, and those who don’t believe the government should ever have had the authority to detain these men without trial. It’s easy to be critical of a debate when one caricatures the “sides” and ignores positions that don’t fit within that narrative. But . . . there is, indeed, a significant mass of individuals in this debate who believe both that we should close Guantánamo and that we should not necessarily release all of the remaining detainees when that happens---a group that includes the President of the United States. Readers may not agree with this position, but at the very least, we should (1) not pretend it doesn’t exist in the interest of scoring rhetorical points; and (2) think carefully about whether a middle-of-the-road compromise recognizing this position might be better than the alternatives.Ignore positions that don’t fit within my narrative? Pretend they don't exist? Here's what I wrote: "We hear that [Guantanamo's] against our values, that it’s 'not who we are.' But the proponents of this view---including President Obama---propose to continue law of war detentions somewhere else, meaning that it is who we are. And the proponents of this view who actually mean it---like the human rights groups---are never quite prepared to say what they really mean: that they favor releasing Abu Zubaydah and Hambali and the other hardest-core terrorists at the site against whom no criminal charges have yet materialized." In other words, I clearly described the President as part of---as Steve puts it---a "mass of individuals . . . who believe both that we should close Guantánamo and that we should not necessarily release all of the remaining detainees when that happens." And I clearly distinguished this group from people who believe that closing Guantanamo means releasing everyone we can't charge. One of us, in short, may have pretended something didn't exist in order to score a rhetorical point. But it wasn't I. More broadly, Steve is arguing that the Guantanamo debate is more sophisticated than I give it credit for. And to be sure, I was intentionally caricaturing it. But I wasn't caricaturing it by very much, and I actually think most readers will see more that they recognize of the debate that has played out in the public arena in my caricature than they will in Steve's earnest insistence that, really, "there is plenty of nuance in the debate over 'closing Guantánamo.'" If that phrase brings a smile to your lips, perhaps you think so too. What are Steve's examples of this plentiful nuance? His own writings, and Jennifer Daskal's writing. Well, yes, fair enough. Both are, indeed, nuanced. So Steve's complaint would be a fair one if my post had been directed at any of those few excellent academics who have lived in the Guantanamo weeds with me for the past however many years. But it wasn't. To whatever extent that wasn't absolutely clear, let me clarify now that I did not mean to include either Jen and Steve in my criticisms of the President, his congressional critics, and the institutional human rights groups. Now Raha Wala, in contrast to Steve, actually does represent one of those human rights groups. And his post---among a number of other points---makes a very important concession, admittedly in parentheses:
These macro policy considerations are, in my view, much more important than narrower questions about what to do with Abu Zubaydah and Hambali, as important as those questions are. (Though, to answer Ben’s challenge: I think everyone agrees that those detainees will have to be released at the end of hostilities pursuant to the laws of war, and it’s hard to argue that an entire war---and all related wartime policies---should continue for the purpose of holding a handful of detainees. I am confident that our law enforcement and intelligence agencies, working with our allies, can handle any potential threat posed by these and other detainees after they are transferred.)Elsewhere in his piece, Raha makes clear that he believes that we are already past the lawful termination of hostilities under the laws of war: "The anti-GTMO advocates (human rights groups, for example) argue that we are not in fact at war with Islamic extremists, and that indefinite detention and military trials---harbingers of repressive regimes---are only appropriate in truly exceptional circumstances, which would not typically include terrorist attacks or government responses to them." Raha here is displaying admirable candor, and let's be clear about what he is being candid about: He's saying that Abu Zubaydah and Hambali should be released. I am not with him on that point, but I very much respect his willingness to put his name on it, something that makes him highly unusual in the human rights movement. I question only his statement that "everyone agrees" that this is the appropriate disposition for these two senior-level terrorists. To the contrary, I think very few people agree with him---which is why very few human rights advocates have had the guts, as Raha has, to say it in public.