Soliciting Detention Views

With leaks and rumors flying fast and furious (and uncomfirmable) in D.C. this week about what the Administration is likely to decide to do with the remaining Gitmo detainees, it’s no surprise the detention debate is again heating up. If you haven’t seen it already, take a look at Lindsay Graham and John McCain’s op-ed in the Wall Street Journal today. Hope to blog about that a bit later.

But the entry that takes the audacity cake so far has to be Andrew McCarthy’s public letter to the Obama Administration task force (the one working on detention policy generally, not about Guantanamo per se) in which he declines to participate in its proceedings. The detention task force, set to report to the President on its initial findings in July, is starting to bring in groups of experts and interested parties for roundtable discussions about detention options going forward. Responding to an invitation from the task force to join them for a meeting of current and former prosecutors with terrorism prosecution experience, McCarthy (a former prosecutor) responded with a public letter (conveniently available here) rejecting the invitation. The gist? McCarthy won’t be joining in the meeting because (a) if the Administration is willing to prosecute John Yoo, “any prudent lawyer would have to hesitate before offering advice to the government” (for fear of later prosecution I take it); and (b) the task force only wants to know what he thinks so they can later say they consulted widely and McCarthy refuses to be co-opted in that manner.

Now I’ve sat on panels with McCarthy in the past, and while we disagree on various things, in these limited encounters I’ve never found him to be foolish or ill-motivated or anything of the sort. But this is just silly. Set aside the widespread conventional wisdom that U.S. criminal prosecution of John Yoo is highly unlikely at this point. McCarthy seriously thinks the Administration is going to launch a criminal investigation of some non-government-employee think-tanker who shows up at a policy roundtable to offer his thoughts? As for fears of co-optation, he could certainly protest any such exploitation of this kind of meeting if and when the time comes. In the meantime, what would McCarthy recommend? That the task force not solicit a wide range of views on detention policy, and the strengths and weaknesses of the criminal justice system in this regard?

McCarthy’s insistence that the Administration has already made up its mind on these matters because of the announced closure of Guantanamo just doesn’t hold up. The Administration came up with two separate task forces on these matters for a reason. One is to deal with the unique disaster that is the symbolism and reality of Guantanamo Bay (a policy so widely recognized as a failure even the President who started it thought it should be closed). (And if the Administration hasn’t already warned the public that there are no good solutions to be had in cleaning up that particular mess, now would be a good time to start saying that. A lot.) Another task force is meant to deal with what kind of detention authority is needed going forward. That is, it’s a task force that recognizes the need for the United States to detain some people in the interest of counterterrorism, and wants to understand how best to go about it. That’s the task force that wanted to listen to McCarthy. A shame he didn’t at least try talking to them directly.

McCarthy probably shouldn’t be faulted for using his meeting invitation as a platform for wider dissemination of his own views on detention (also featured in his book, which gets a decent plug in McCarthy’s letter explaining his reasons for declining the invitation). The detention debate is tough, people feel strongly, and we all want the outcome we think is right. All the more reason for the unelected among us to make our cases on the merits.