December 4, 2012 | The Atlantic

Gitmo’s Troubling Afterlife: The Global Consequences of U.S. Detention Policy

Closing the camps in Guantánamo Bay won't address the real problems with noncriminal incarceration.
December 4, 2012 | The Atlantic

Gitmo’s Troubling Afterlife: The Global Consequences of U.S. Detention Policy

Closing the camps in Guantánamo Bay won't address the real problems with noncriminal incarceration.

Senator Dianne Feinstein recently commissioned a Government Accountability Office report identifying prison facilities in the continental United States suitable for detainees currently held in Guantánamo Bay. After Fox News reported about this document, her office released a statement saying that the GAO's study “demonstrates that if the political will exists, we could finally close Guantánamo without imperiling our national security.” Independently, a coalition of advocacy groups sent President Obama an open letter on Tuesday urging him to veto the 2013 National Defense Authorization Act if it impedes the administration's ability to close Guantánamo.

Thus, though U.S. detention policy was not a contested part of the 2012 election, it may reemerge as a political issue. Benjamin Wittes of the Brookings Institution noted in his essential volume Detention and Denial that current public discussion of the issue represents “denial and obfuscation,” in that “we pretend that noncriminal detention doesn't exist or that we're phasing it out” rather than facing the daunting task of reforming it. The early stages of this new round of wrangling over detention policy, unfortunately, seem to represent another step in the direction of denial rather than toward reform.

At the outset, let's not pretend that physically moving Guantánamo detainees into the United States addresses any of the reasons noncriminal detention has been controversial. True, moving the location of detention removes the physical symbol of Gitmo, which has a great deal of resonance internationally. But the substance of the policy would not change if detainees were housed in Illinois rather than Guantánamo. The same laws, rules of evidence, and construction of presidential power would remain even if the location shifted. Yet this renewed debate is largely shaping up as an argument over where detainees should be held.

It is true that President Obama said in a Daily Show appearance during the course of the presidential campaign, “I still want to close Guantánamo. We haven't been able to get that through Congress.” But this statement largely masks the evolution in the president's thinking on the issue of preventive detention, and what closing Guantánamo would actually mean.

Obama famously promised during the 2008 presidential campaign that he would close the Guantánamo facilities, and signed an executive order upon assuming office requiring their closure within a year. But as Daniel Klaidman details at length in Kill or Capture, a series of intense internal debates within the administration ultimately convinced the president that there was a category of detainees who the administration would have to continue to detain “because they cannot be prosecuted but are too dangerous to release.” The phenomenon of recidivism among former Gitmo detainees underscores this concern.

Because of this shift in Obama's thinking, his showdown with Republicans over Gitmo in his first term did not involve administration proposals to try or release all detainees. Rather, the major debate involved whether detainees should be moved to the Thomson Correctional Center near Thomson, Illinois. (There were also, of course, a few other controversies related to detention policy, including the administration's ill-fated attempt to try Khalid Sheikh Mohammed in Manhattan criminal court.)

The evolution in Obama's thinking is, in my view, not a bad thing. Despite overheated rhetoric to the contrary, detention of enemy combatants is a traditional tool of warfare for obvious reasons — namely, the concern that a captured soldier or “unlawful combatant,” if released, will return to the fight. For this reason, the Third Geneva Convention explicitly contemplates the detention of enemy combatants until “the cessation of active hostilities.”

Thus, although the public debate about American detention policy has become hopelessly confused, the real reason this practice has been controversial over the past decade is not the fact that individuals are being held without trial: That happens routinely during war. Rather, it is the fact that this conflict presents unique circumstances. For one thing, the enemy doesn't wear a uniform, so how do you determine who is actually a part of the enemy force?

A second problem is that of duration. Typically, enemy combatants would be held until the cessation of hostilities, but what does that mean in the context of violent non-state actors like al Qaeda? As Geoffrey Corn, a professor at the South Texas College of Law who previously served as the Army's senior law of war expert in the Office of the Judge Advocate General, told me in an interview, “When you go to war with Panama or Iraq, no one is sure at the outset when it's going to end, but everyone's pretty sure we don't have 30-year wars anymore.” But in the context of violent non-state actors, we cannot be so confident.

One option, of course, is ending preventive detention entirely, which is favored by many of Obama's critics on the left. But that carries second-order consequences of its own, since al Qaeda has not ended its fight against the United States, nor is the broader problem of violent non-state actors going to disappear. If the U.S. doesn't employ preventive detention, doesn't this create a perverse incentive for killing rather than capturing the opponent? As Wittes writes, “The increasing prevalence of kill operations rather than captures is probably not altogether unrelated to the fundamental change in the incentive structure facing our fighters and covert operatives.”

Moreover, if the U.S. tries to wash its hands of preventive detention, detainees will almost certainly end up in worse conditions as a result. The idea has seemingly taken hold that because detention of violent non-state actors by Western governments is unjustifiable and immoral, “local” detention is preferable. So, for example, the United States supported recent military efforts by African Union, Somali, and Kenyan forces to push back the al Qaeda-aligned Shabaab militant group in southern Somalia. The U.S. did not take the lead in detaining enemy fighters, and instead its Somali allies did so. But when one compares, say, detention conditions in Somalia to those in Gitmo, the latter is far more humane. If the U.S. and other Western countries eschew detention when fighting violent non-state actors, somebody is going to have to do it, and that alternative is almost certainly going to be worse for the detainees themselves.

What these second-order consequences point to is the fact that reform of U.S. detention policy is more vital than moving detainees to other facilities. William Lietzau, the deputy assistant secretary of defense for rule of law and detainee policy, has told me that the detention of violent non-state actors is an unsettled area of law. To Lietzau, defined and developed rules govern the prosecution of criminals, while the Geneva Conventions govern detention of privileged belligerents under the law of war. But for unprivileged belligerents, such as violent non-state actors, the applicable law is largely undefined. Lietzau has even designed a chart, which has become famous among his colleagues, illustrating the law's lack of development.

This is not to say that moving detainees from Guantánamo to the continental United States is necessarily a bad idea. One could argue that removing that symbol is important. Further, in the long run, moving the detainees may actually save money, since everything at Gitmo, from food to construction materials, must be imported at high cost. But the location of the detention does not address any substantive concerns.

Though it will not be easy, working with partners like the International Committee of the Red Cross to forge a better set of principles and procedures governing the detention of unprivileged belligerents is far more important than moving the Gitmo detainees elsewhere. Put simply, violent non-state actors will continue to challenge the nation-state, so nation-states need a way to deal with detention in this context. Our current policy of pretending that we have moved past noncriminal detention all but ensures we will be caught flat-footed the next time such detention is necessary in a large scale, and thus that the problems inherent to detaining unprivileged belligerents will have gone unaddressed.

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