Washington Post on Guantanamo Policy

by Kenneth Anderson

Fine long article in the Washington Post today by Peter Finn and Anne E. Kornblut on why President Obama has not fulfilled his promise to close Guantanamo Bay.  Detailed, measured, and comprehensive, with an excellent timeline graphic.  I agree with Ben Wittes’ take that the best bit of reporting detail is this:

On Obama’s inauguration night, when the new administration instructed military prosecutors to seek the suspension of all proceedings at Guantanamo Bay, defense lawyers at the base formed a boisterous conga line.

“Rule of law, baby!” they shouted.

Ben’s discussion is here at Lawfare.  He observes that many sensible people, including Matthew Waxman and John Bellinger, had been telling the incoming adminstration for months, and indeed had been saying to anyone who would listen for years, that ultimately the number of people it would be able to try would be limited.  And yet it would still conclude that it could not let a number of them go, either — and in office would not do so.  My on experience, as someone on the outside defending roughly that position in academic conferences, press discussions, etc., was that left-liberal America was mesmerized by the slogan, “Charge them or let them go.”

At risk of some snark, I also have to say that the incoming administration was afflicted with a not-negligible amount of hubris, intellectual and moral, particularly in the matter of Guantanamo.  However, whatever one’s views of this –and I do understand that no one, save perhaps those in the administration deciding whether to charge the detainees or hold them without charges, has changed their minds about this since, oh, 2003 or so — the WaPo article is fine reportage, and well-worth citing in scholarship and elsewhere.

http://opiniojuris.org/2011/04/24/washington-post-on-guantanamo-policy/

6 Responses

  1. ==left-liberal America was mesmerized by the slogan, “Charge them or let them go.”==

    Do I understand correctly that only mesmerized left-liberal America is for the rule of law?

  2. Mihai -  The difficulty with the “charge them or let them go” mantra — for the left and for everybody else — is that operates out of an assumption that the incarceration is based solely upon alleged criminal conduct.  That is one of the, in my opinion, unfortunate and entirely foreseeable side effects of the Bush administration blunder (again, my opinion) in stating that the Geneva Conventions did not apply to the detainees in question.  Had they been treated under the requirements of the Geneva Conventions, it has always seemed to me that their status could have  – and would have — led to detention regardless of the criminality or non-criminality of their conduct, while still leaving open the option to prosecute in any number of possible fora for domestic crimes, and for war crimes, if applicable.  Additional detention or other criminal punishment would have then resulted from any convictions obtained in a proper forum.  The case of Manuel Noriega might have served as something of a model.

    As to the “close Gitmo” motto:  I always viewed that as a red herring.  The issue always was, and remains, in my view, what is to be done with these detainees, and on what basis…. and not where they are held; because no matter where detained, the issue of appropriate treatment under the law (and just what that the law is and requires) remains squarely on the table.

    What we have in this matter is a case where the law of war model intersects with a law enforcement model.  Both apply, but application of the law of war model is complicated by the nature of this conflict between a state and states with a non-state actor.  In wars between states, the norm has been – and remains – that individual soldiers are not criminally responsible for the decision of the state to go to war, although they are for their own individual behavior in the conduct of the war; but where the war is with a non-state organization, the responsibility of each member of the organization for the decision of the organization to go to war, seems – for some, and certainly for the Bush administration – to merge with individual responsibility for conduct in the war itself.  This caused the Bush administration to create a class of detainees who are at once, and at the same time, quasi-POWs or Geneva detainees or internees who can be held for the duration of the conflict without regard to any criminal misconduct, and also and at the same time criminals to be prosecuted both for the decision to make war as well as for criminal misconduct and war crimes committed in that war.  It is the consequence of the creation of this new class of individuals with which the Obama administration is now wrestling.

    Just my thoughts.

  3. Left-liberal America has a highly particular conception of “the rule of law” that it attempts to pass off as universal and self-evident.

  4. @Alan

    I look at the question from my point of view. How would I like it if anybody abducted me, deprived me of my freedom for an indefinite period of time, tortured me? I would not like it. This entity that does these horrible things to me does not give me a free trial. I cannot sue this entity (let’s call it a state if you want) in its courts, nor in other states’ courts, nor in international courts. I cannot demand that it either gives me a fair trial or releases me. I cannot demand a compensation. I cannot demand that some responsible guy is punished for what happened to me.

    Do I care what kind of power politics within the group in that state play? No. Why should I care what interests the Republicans or the Democrats have, about their political career? And if this is the case, why should I care when this entity demands from me not to commit terrorist acts? Is this entity joking?

  5. I am not sure the “left liberal mesmerization” meme covers the subject.  It is both too narrow and too broad a description of the group of persons and groups who have arrayed themselves against Gitmo. 

    But, I am getting tired of beating on these points in a situation where the left/right distinction is meaningless across our political class.  Here is a new note I wrote at Jurist – http://jurist.org/forum/2011/04/benjamin-davis-refluat-stercus-por-favor.php

    Best,
    Ben

  6. At the risk of some snark, I also have to say that the outgoing administration was afflicted with a not-negligible amount of hubris, intellectual and moral, particularly in the matter of everything they did.

    Fixed it for you.

    And beware that snark begets snark.

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