OJ's friend and frequent interlocutor, Ben Wittes (of Lawfare blog, the Brookings Institution, and member of the Hoover Task Force on National Security and Law), has a new book out of Brookings Institution Press,
Detention and Denial: The Case for Candor after Guantanamo. It has been out since late December, but I just got a chance to finish reading it. I’m a huge fan, which will surprise no one familiar with my thinking about Ben’s work as well as about Guantanamo policy.
Detention policy fatigue has set in and positions have become sclerotic. It’s not a front burner issue for very many people, in the executive, in Congress, or even in the academy or the activist community. That is for a lot of reasons. They include that as the population of Guantanamo has been reduced as well as note taken of former detainees returning to the fight once released, the whole question of detention looks much murkier than it was back in the days when it was a marker of pro-Bush or anti-Bush. It was murky then too, as Ben’s earlier work noted back in those days, but it was seen as clear-cut. The very fact of it being in the Obama administration’s hands has stripped away some of the angelic veneer of “close Guantanamo.”
But one striking thing to my mind about the somewhat sidelined debate over Guantanamo and detention policy is the extent to which it feels like the debate is less about figuring out what, realistically, to do going forward, than people inside and outside the administration looking to “position” themselves — what they said before and the policies they are responsible for now, what they said about the Bush administration and what they say about the Obama administration, and how to avoid charges of inconsistency if not hypocrisy.
I understand that and certainly would be doing it myself if in a position in which anyone cared what I thought then or now. Reputation and consistency matter, partly for oneself, but also for the important reason that administrations change, and at some point there might well be a Republican administration that also has to deal with Guantanamo and detention. It is important to hold people to consistent positions if only so that policies accepted today because it is Obama do not somehow transmute into grounds for excoriation when it is the President Anderson (Republican, frmr gov. State of Vulcan) administration. The positioning is part of that, and it has an important purpose. As in so many areas of the war on terror since 9/11 — detention and Guantanamo, targeted killing and drone warfare, etc. — we stand in deep need of “institutional settlement.” Sauce for the goose is a vital part of that. Also, I should add, I don’t mean by this that people can’t or shouldn’t change their minds: of course they should as they think correct. It’s that if one does, one has to admit to it and, to the extent one can, explain why.
But preoccupation with positioning onself in relation to one’s views in other times and settings is only one issue. Too much attention to it makes it hard to look pragmatically at forward looking institutional settlement. This is the vital role played by Ben Wittes, in his institutional work at Brookings and especially the deep databases of information on Guantanamo that his office has developed over the last couple of years, but also in his several books on the topic. The central theme of all that work is centrist and pragmatic: First, that the issues of detention are not going away, because there are people in US government hands that will not be released, nor will they be (successfully) tried. We would have more of them, but because their intelligence value is now outweighed by the problems of holding and interrogating them, we have instead chosen against detaining people any more. That is not quite the same as saying that we have a policy preference for targeted killing; the accurate statement is to say that we have a policy against detention.
Second, institutional settlement looking foward has to involve Congress and the Executive, as the two political branches of government, coming together. This is a constant theme for Ben, Jack Goldsmith, Bobby Chesney, and lots of other people (including me, in a short New York Times magazine piece in 2006,
“It’s Congress’s War, Too,” which says it all). One of Ben’s lessons is that the current situation looks stable, but it’s not. It’s just a stalemate. A stalemate in which there is not enough at stake for players in the administration or Congress to spend political capital dealing with things. Things apparently sit; it is more accurate to say that they drift.
Below the fold is the book description. Highly recommended.
