Jennifer Daskal in the NYT on Why to Not Close Guantanamo (For Now)

by Kenneth Anderson

Jennifer Daskal (who, I’m delighted to say, has just accepted an offer to join the faculty at my school, Washington College of Law) has an important op-ed in the New York Times today titled, simply, “Don’t Close Guantanamo.”  Many of us know Jen Daskal from her earlier positions in the Obama administration Justice Department and, before that, Human Rights Watch – where these were her issues.  So why not close Guantanamo?  Her core point hinges on the notion of deeming an end to the conflict in a legal sense – the conflict as defined under the AUMF – as highlighted by just-stepped-down Department of Defense General Counsel Jeh Johnson in one of his final speeches:

The political reality is that closure of Guantánamo is unlikely to happen anytime soon, and if it did, it would do more harm than good. We should instead focus on finding places to transfer those cleared to leave the facility and, more important, on defining the end to the war.

In a recent speech, Jeh Johnson, then the Department of Defense general counsel, discussed a future “tipping point” at which Al Qaeda would be so decimated that the armed conflict would be deemed over. Statements from high level officials suggest that this point may be near. And as the United States pulls out of Afghanistan, there is an increasingly strong argument that the war against Al Qaeda is coming to a close. With the end of the conflict, the legal justification for the detentions will finally disappear.

At that point, the remaining men in Guantánamo can no longer be held without charge, at least not without running afoul of basic constitutional and international law prohibitions. Only then is there a realistic hope for meaningful closure, not by recreating a prison in the United States but through the arduous process of transferring, releasing or prosecuting the detainees left there.

In the meantime, we should keep Guantánamo open.

Framed against the idea that a formal legal end to the conflict might be forthcoming sooner rather than later, Daskal’s arguments for not closing it now seem much less an about-face than the op-ed title might suggest.  The argument is essentially strategic as a matter of timing; far from giving up on closing Guantanamo, it argues that the legal timing matters quite a lot to actually getting there. Given that, I’m not sure there’s that much daylight between her position and Deborah’s, for example, in relation to Deborah’s comments on this same Jeh Johnson speech. But as Ben Wittes notes at Lawfare, this is a brave move by Daskal, given the world from which she comes:

[T]he truth is that the argument is different coming from Jen, a committed human rights advocate, than coming from [Wittes]. The human rights movement has been rigidly and dogmatically—and irrationally—dug in on this matter. And very few people have had the guts to state simply that given the way things have played out, Guantanamo’s closure isn’t the ideal outcome. If the administration could come to where Jen has come here, significant policy opportunities for a different relationship with Congress over detention would open up. It’s great that Jen is willing to say in public that the emperor has no clothes.

The basic debate here will gradually turn (I believe Daskal is right to suggest) and hinge on the meaning of the end of the conflict. At this point, what we have in the way of administration statements on this is Jeh Johnson’s somewhat delphic speech – it has something on which everyone can hang their hat if they want to.  That is not a failing of the speech, to be clear – it had to be hedged in many ways (and Jack Goldsmith has commented on many of them).  It is far from insignificant, as I remarked at Lawfare when the speech was first delivered, to recognize the possibility of an end to the conflict and to begin cautiously to lay out the general conditions for it and what they mean in legal terms.

Still, no one should think they can know today when that point will come and exactly how it will be defined, either as a general proposition or in the factual circumstances as they develop; Johnson was explicit about this.  A lot of what is being said in commentary on this is less analysis, however, than lobbying on exactly this issue.  But consider how wide the gaps are between declaring an end to the conflict in a legal sense, and stating precisely and concretely what that means.  One the one hand, the speech talked about the end of the conflict and the importance of defining its meaning in legal terms.  On the other hand, it recognized with respect to detention that there would be people who might never be tried or released, and it cautiously hinted at legal reasons that might cover this.

Moreover, it was also clear in Johnson’s speech that an end to the conflict, in the US legal view, would not thereby terminate the US’s legal authorities to use force abroad, in targeted killing or other operations. Those legal justifications might shift or be articulated differently in both international and domestic law terms.  But whether in relation to on-going threats that might be put under the AUMF (arising from actors that might or might not be characterized as “affiliated” forces with Al Qaeda), or in relation to brand new kinds of threats, the end of the conflict would not be seen as somehow shutting down the President’s authority to engage in self-defense actions.  Johnson’s speech was enormously important, but mainly it quite deliberately (and correctly) raised questions of law and policy rather than answering them.

In that regard, Daskal’s op-ed, while heretical on the surface, actually laid down a strategic marker to challenge the administration to go ahead and find a way to declare the conflict legally over – and to figure out what it thinks that would mean in legal terms for detainees at Guantanamo. Daskal laid down that marker with a strong inflection that the end of the conflict would be the basis for closing Guantanamo, and would put the necessity of that closure on a far firmer footing, both legally and politically.

http://opiniojuris.org/2013/01/11/jennifer-daskal-in-the-nyt-on-why-to-not-close-guantanamo-for-now/

4 Responses

  1. But we could never be “at war” with the non-state actor al Qaeda — see http://ssrn.com/abstract=2165278
    We could detain certain persons during the real wars in Afghanistan against the Taliban and in Iraq, but what about GC arts. 49 and 147, which prohibits the transfer of any person who is not a pow out of occupied territory to, e.g., GTMO and that requires that the detainee be returned?  Are these people still reading the Goldsmith memo as if it reflected international law regarding the propriety of transfers? Are these people reading what treaty or customary international legal norm re: a supposed “war” against al Qaeda?

  2. Daskal has moved from the principled to the strategic and some would say pragmatic.  The problem with her point of view change that should be somewhat obvious to all is that the garnering of the political will to do any of these things she hopes will be harder to do with Guantanamo open.  The reason is the obvious “out of sight, out of mind” mentality of our political class. 
    More importantly, with no doubt that the US Constitution applies in the United States as opposed to the continued ambiguity about which parts of the US Constitution apply in Guantanamo, with the remaining prisoners held in the US the pressure would remain higher on our polity to explain just why under our Constitution our government should continue to indefinitely detain certain people without charge whether or not it is detention in relation to the armed conflict.  This might help us to get to where we might have gotten in January 2002 if the Geneva Conventions avoidance dodge had not been bought by the Bush Administration – these are POW’s rather than in this nebulous enemy combatant canard. 
    And, of course, Guantanamo remains a stain on the United States on the international plane that merely strategic considerations in the US domestic space continue to undervalue.
    As noted post-Hamdan II, some of those detainees may be charged in civilian courts for crimes that the military commissions are inapt to do – conspiracy or material support for terrorism.  If they did the crime, let them do the time after being convicted in an ordinrary Article III court under our constitution.  It would have been so much simpler if we had not gone through this three iteration military commission craziness – which, I would note – makes our military lawyers and judges clean up messes that the intelligence services created with their worldwide torture regime put in place at the behest of the “high-level” types.
    Turning the focus to the idea of when we can declare the War over is nice, but all it does is mask what would likely be the major concern of any administration in making such a declartion: after such a declaration what do we do with the folks at Gitmo.
    The logic now is to delay that point as far in the future as possible with Gitmo being a nice legal limbo to hold people in until they die.  In fact, I can imagine that we would wait until all 166 are dead to then declare the War over in order to avoid dealing with the question of what to do with these people.  We are fully capable of this – see Lincoln in 1862 with US-Dakota Wars military commissions in which he authorized 30 odd hangings but took no decision of either acquittal or confirming the death sentence for the remaining 270 or so Native-Americans condemned to death by military commissions in Minnesota – Lincoln’s form of indefinite detention.
    The Administration’s internal review of all detainees and categorization of them based on the evidence is problematic because the question arises as to what is the nature of the evidence being used to make each of those determinations.  I for one am certain that the evidence used is tainted by the massive torture process that has gone on for so many years in our name. I doubt the reliability of the secret evidence. 
    The conditions under which many of the detainees were picked up originally – as bounties as opposed to on a battlefield – are not hidden.  This reality raises another issue about why people are being held.
    Yemen is dangerous – and with consent of the Yemen government it appears – we are helping to keep it dangerous with our drone strikes. That we can not transfer them back to Yemen for fear they would be tortured there does not mean that they have to languish at Gitmo as opposed to coming stateside.
    To allow oneself to be coopted is not a sign of courage.  It is merely acquiescing to the hurdles and roadblocks and resistances that the security portion of our state and members of Congress have insisted upon and put in place all these years.  Some did such acquiescence or joining with the maddening crowd early.  Others do it later.  Many though resist this opening of another path to undermine human dignity.
    If Gitmo was such a great place now, why am I reading this year about Latif committing suicide.  C’mon man.
    I will be down at Gitmo soon enough as a military commission observer to see for myself how good it is as an ordinary citizen with absolutely no past, present or future ambitions to work for the Executive.
    Best,
    Ben

  3. Better off at Gitmo, c’mon man.  Here is about Latif coming home at http://truth-out.org/news/item/13818-guantanamo-prisoner-buried-new-details-death-surface out today at Truthout.  Can’t even find his goddamn organs!
    Best,
    Ben

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  1. […] to Ben’s post on Jennifer Daskal’s NYT Guantanamo op-ed today, over at Opinio Juris I comment on a different part of the op-ed.  Ben refers in part to reasons Jen offers why a transfer of […]