The 'debate' about Gitmo

Either Barack Obama will show strength by adopting the core of Bush's policy regarding the prisoners held at Guantanamo Bay and continue to detain them without trial, or the next president will give in to political pressure from crazy civil libertarians, release known terrorists and endanger the US.

That's the message of much of the commentary on Gitmo churned out in the traditional media since the election, including this NYT report by William Glaberson. It has relied not so much on the staunchest critics of Bush's detention and torture policies – no surprise that - but instead on Washington establishment types with axes to grind or interests to protect. Their notion is that, while Obama remains most malleable, he needs to be gulled into thinking that the central issues concern political leadership and the need to protect America from dangerous terrorists.

They don't. The central issue is whether to restore the rule of law. Much to their regret, that's not a very complicated issue.

As a result, the 'serious' people (who generally did nothing under Bush to stop his illegal policies) are straining to find ways to complicate the question of what to do - now that Bush won't any longer be an impediment to change. The most intractable complication of any change in essential policy, we're told, is that restoring due process means - horribile dictu - that some prisoners might go free.

What if some detainees are acquitted or cannot be prosecuted at all?

In most constitutional states, that's considered a feature of due process rather than a bug: People whom the government cannot charge and convict of crimes should not be held in prison.

Apologists for Bush's Gitmo policies are worried principally about three things: (i) That the government has little evidence to charge most of the prisoners with crimes, and much of that is laughably weak or acquired by illegal means such as torture. (ii) The government's manipulation of evidence, of charges, and of the kangaroo courts it created would be exposed in real court proceedings. (iii) All the prisoners have been tortured through a system of "exploitation" crafted by the Bush administration.

Under those circumstances, few if any prisoners could be convicted of crimes. None could be charged without exposing government wrongdoing to public scrutiny in the US. In the civilized world, both those things would be welcomed: the release of prisoners long detained without adequate evidence, and the exposure of government crimes.

But Glaberson's cohort of experts is urging Obama to circumvent the imaginary 'problem' of due process by creating a new system of "preventive detention".

Benjamin Wittes, a fellow at the Brookings Institution, argued in a book published in June that Americans needed to cross a “psychological Rubicon” and accept the idea that preventive detention was a necessary tool for fighting terrorism.

“I’m afraid of people getting released in the name of human rights and doing terrible things,” Mr. Wittes said in an interview.

That is to say, because of Mr. Wittes' fearfulness and his disdain for human (i.e. legal) rights, Obama is supposed to restore the rule of law by creating a parallel system of injustice to cover the people the president (or Mr. Wittes) doesn't wish to put into the justice system (or prisoner of war camps).

“You can’t be a purist and say there’s never any circumstance in which a democratic society can preventively detain someone,” said one civil liberties lawyer, David D. Cole, a Georgetown law professor who has been a critic of the Bush administration.

Let me demonstrate that Mr. Cole is wrong: There is no circumstance in which a democratic society can preventively detain someone. I just said what he claimed could not be said.

Proponents of a president's 'right' (or 'duty' as some would have it) to incarcerate 'dangerous' people without trial 'preventively' point to our willingness to lock lunatics away in insane asylums. Just as in the Soviet Union, I guess, criminal charges are supposed to be likened to mental disorders. By this confusion of criminal charges with medical diagnoses, the presumption of innocence would no longer apply. That sort of argument might appeal to fools and Brookings fellows, but I won't waste further time on it.

The other main reason that Glaberson's cohorts favor a new law on 'preventive detention' is that they assume it will never be invoked against people like themselves. To the smart set, the presumption that presidents with monarchical power would lock up only 'truly dangerous people' makes the long-term damage to the very foundations of our legal system seem trivial. Indeed for them there's a considerable benefit if Obama cooperates in drawing a veil over the past by not exposing it to judicial discovery: the unpleasant business of prosecuting the worst crimes of the Bush administration can be pushed aside indefinitely.

It's generally an unspoken rule of the Washington establishment that very important people do not have to answer for their abuse of power. In particular, according to this viewpoint, each successive administration is supposed to give its predecessor a pass for any and all crimes it committed. That's considered the height of bi-partisanship. Prosecuting important criminals, by contrast, "could be perceived as vindictive". "It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," says former federal prosecutor Robert Litt – whose own law firm's clients specifically stand not to benefit by spending time in that fashion.

You see, for the Washington elite the benefits of upholding our legal tradition hinge upon whether or not the legal system is brought to bear upon oneself and one's friends and clients.

Interwoven into this shameless assault on accountability and the rule of law are several preposterous (and therefore unstated) assumptions. In particular we're supposed to accept that certain prisoners are indescribably dangerous...more dangerous than the attack on our legal tradition...and that the Bush administration has lots of reliable information that "someone is a threat" though it can't be proved in court. An essential corollary is the assumption that these somebodies are critical operatives in the machinery of terrorism. Their release, we're to suppose, would lead inevitably to further acts of terror, whereas their continued detention prevents terrorism.

Now, I don't accept the specious view that Common Law stops applying whenever an allegation of terrorism is made. Neither should anybody. It's authoritarianism presented in legal raiment, very much in the tradition of the infamous Sedition Act of 90 years ago.

The imperative of Panic does not trump all. But even if I did accept that cowardly notion, there are many good reasons for rejecting the assumption that prisoners at Gitmo are dangerous in ways that no other actual or potential criminal suspects can ever be. Because unless you accept that the rules, laws, or precedents set in this instance can never be applied to anybody other than the terrorism suspects already held at Gitmo or in George Bush's other secret prisons, then you're stuck with an extra-legal system of imprisonment ruled over by the president. Far from solving any problems, you've just created (or institutionalized) a big one.

In any event, a single reason for rejecting that assumption is sufficiently devastating that there's little point in dwelling upon any others. And that is this: The Bush administration has shown again and again that it does not truly believe the inflated allegations it directs against Gitmo prisoners.

For example, obscured in the 'debate' thus far concerning what to do about Guantanamo is the Seton Hall study delivered in August to the Senate Judiciary Committee. That's a huge omission. This meticulous study (PDF) documents how many former prisoners have been released to their home countries, and how little correlation there has been between the rate and speed of their release, on the one hand, and the gravity of the Bush administration's allegations against them on the other.

In his written testimony to the Committee, Professor Mark P. Denbeaux, director of Seton Hall Law’s Center for Policy and Research stated, “…the Center sought to determine how evidence gathered against any given detainee influenced the decision whether to release him. Center researchers expected to find that the detainees who presented the greatest threat would have been released last, or would still be held at Guantánamo.

“Center analysis shows that was not the case. The only significant correlation to one’s being released, the date of his release, and status upon release, is the nationality of the detainee. Those from Afghanistan, Pakistan, or Saudi Arabia were more likely to be released, and more quickly.”

In other words, the allegations stop mattering once the Bush administration decides it wants to stop detaining a given prisoner. That makes perfect sense, of course, under the circumstances. Everybody involved knew that many of these prisoners had been purchased in the first place under a program so bizarre that the sales prices had to be euphemized as so-called "bounties". The allegations applied to the prisoners, once purchased, came straight off a menu of hyperbolic and simplistic tropes - as an earlier Seton Hall study (PDF) had shown conclusively.

Thus before the advocates for creating a new system of "preventive detention" ever get a hearing, they ought to be required to explain why we should give credence reflexively to allegations by a Bush administration that has a credibility gap. I really don't think they have an answer to that.