Prisoners’ Lawyers David Remes and Sabin Willett Debate Guantánamo with Benjamin Wittes

28.1.11

In the debate about the closure of Guantánamo, I have made my position abundantly clear, in, for example, my recent articles, Guantánamo Forever?, The Political Prisoners of Guantánamo and Obama’s Collapse: The Return of the Military Commissions. Lacking courage, President Obama has allowed a cynical Congress to oppose his plans to bring prisoners to the U.S. mainland to face trial and to interfere with his right to release prisoners, effectively bringing to an end his attempts to close the prison.

Despite his own Guantánamo Review Task Force recommending that 89 of the remaining 173 prisoners should be released, all are still held — either because they are Yemenis, and the President agreed a year ago to issue an unprincipled moratorium preventing their release, or because they are awaiting resettlement in third countries (after every branch of the U.S. government refused to allow resettlement in the U.S.). The Task Force also recommended that 33 men should be put on trial, but with transfers to the mainland blocked Obama has chosen to press ahead with Military Commissions at Guantánamo instead. 48 others are to be held without charge or trial, although it is expected that Obama will soon sign an executive order granting them some sort of review process.

For Benjamin Wittes of the Brookings Institution, who supports new legislation authorizing indefinite detention, and who was part of a panel discussion I organized in Washington D.C. two weeks ago, the President’s failures should encourage him to “embrace Guantánamo” as “a facility that offers a far more attractive model of how long-term counterterrorism detention can proceed than do the other sites the U.S. has used.”

I disagree with Ben, of course, as I believe that the laws of war already offer a model for detaining wartime prisoners — as prisoners of war, protected by the Geneva Conventions — and that terror suspects should be tried in federal courts, but in the interrests of opening up the debate, I’m cross-posting his article below, as well as responses by two attorneys for prisoners at Guantánamo — David Remes, who represents a number of Yemenis, and Sabin Willett, who represents a number of Uighur prisoners.

Both David and Sabin take exception to Ben’s claims that the detentions of prisoners at Guantánamo “are supervised by the federal courts in probing habeas corpus cases,” noting correctly that the D.C. Circuit Court has intervened to make habeas “a right without a remedy,” as David puts it. Both also lament the government’s inability to release anyone from Guantánamo — the nub of my argument that they have become political prisoners, In addition, Sabin makes the case for reclassifying those identified as soldiers as prisoners of war, noting the cruel absurdity of treating “Taliban privates” worse than Nazi prisoners in World War II, and also draws an apposite analogy with George Orwell’s 1984.

Time for Obama to Embrace Guantánamo
By Benjamin Wittes

It is now two years since Barack Obama promised to close the detention facility at Guantánamo Bay within one year. It is one year since he missed his self-imposed deadline. And as he has no prospect of fulfilling his promise, it is almost certainly one year before he faces his third anniversary failure.

Faced with a recalcitrant Congress, the inability to bring detainees to the United States for trial, and a security situation in Yemen that does not favor the repatriation of large numbers of that country’s nationals, the administration has so far lapsed into paralysis. Obama continues to mouth his commitment to closing Guantánamo but is unwilling to exercise the powers of the presidency to prevent his policy’s frustration. An endless series of leaks and trial balloons promise policy initiatives that do not materialize. And the administration is left mired in the constraints of law, politics, diplomacy and the president’s own rhetoric.

I have a suggestion for the President: Since he is not going to close Guantánamo, he should embrace it.

I don’t say this lightly. I have never before argued against closing Guantánamo, and to be clear, I don’t oppose doing so now. But if Obama is not prepared to do what it takes to effectuate his preference, he should stop pretending and face the fact that the Guantánamo he is stuck with is not that bad. Indeed, it’s something he could talk about very differently from the way he does.

Guantánamo today is not the Guantánamo of the early Bush administration — a site chosen for its lying beyond the reach of the U.S. courts. As I point out in my new book on detention policy, Detention and Denial: The Case for Candor After Guantánamo, it is now a unique detention site for almost the opposite reason. Alone among facilities used by the military to detain enemy forces in the war on terror, detentions at Guantánamo are supervised by the federal courts in probing habeas corpus cases. Detainees there, unlike at any other detention facility, have access to lawyers. Their cases are followed closely by the press, and many hundreds of journalists have been to Guantánamo. What’s more, Obama is reportedly preparing to issue an executive order creating a significant new review process for those detainees who have lost their habeas cases. In other words, while everyone — including Obama — was calling for Guantánamo’s closure, it evolved into a facility that offers a far more attractive model of how long-term counterterrorism detention can proceed than do the other sites the U.S. has used. While it isn’t the system I would build, it is a system of transparency and review. And that is exactly what Obama has said so eloquently that he wants.

Ironically, the big beef against Guantánamo these days is its reputation, and Obama is contributing to that bad reputation whenever he insists that closing the facility remains a priority. Instead of holding up the changes there as the model of what long-term American counterterrorism detention will and should look like, he delegitimizes the one facility that represents what he purports to want — not to mention the one facility for whose preservation Congress has developed a peculiar fetish.

Instead of fecklessly continuing to argue for the closure of Guantánamo, Obama should announce — maybe in his State of the Union address — that since Congress has made closure impossible, he is committing himself to making Guantánamo a symbol not of excess, not of lawlessness and evasion of judicial review, but of detention under the rule of law. Huge strides, he can honestly say, have been made in this direction both in the last administration and in this, and with his promulgation of his executive order creating a review mechanism, he will make further strides. In addition, he should commit himself to expanding Guantánamo by bringing to it and subjecting to its processes all counterterrorism detainees captured in the future or held currently anywhere in the world today whom he means to hold in military detention for a protracted period of time. This will ensure that all detainees whom the United States wishes to hold because of something more than a role in local theater operations receive the benefit of the due process norms that have been established at Guantánamo. In exchange, he should ask Congress to ratify in statute the system that has emerged at Guantánamo and lift the restrictions it has imposed both on transfers and on federal court trials.

I do not know if there is a partner in Congress for this deal. But each part of it is good policy on its own terms, and Obama badly needs to change the conversation about Guantánamo. If he is going to be stuck with it, he might as well make it his own.

David Remes on Embracing Guantánamo

[Wittes' introduction: Habeas lawyer David Remes sent me yesterday the following comments on my earlier post suggesting that it’s time for President Obama to embrace Guantánamo. I want to draw attention very briefly to two aspects of his note. First, it is a model of moral passion and tough-minded criticism (of my work) that remains civil at all times. Second, there is, at the end of David’s piece, a useful point of common ground with my argument that he is criticizing: A skepticism that Guantánamo is really a problem for national security. For David, rather, Guantánamo presents a moral problem. This point is enormously clarifying -- candidly identifying the real stakes for the left in the Guantánamo closure debate. I wish the administration were so forthright].

Ben argues that since President Obama is not going to close Guantánamo, he should stop saying he wants to close it, and should embrace it. Of course, Obama has failed to close Guantánamo, and Congress has hemmed him in. But Obama should close Guantánamo. He should at long last muster the political will to close it. The one thing he should not do is declare his failure a success.

I understand Ben to be saying that Guantánamo is really pretty good, all things considered; that in saying Guantánamo should be closed, Obama is only reinforcing the misperception that Guantánamo is really pretty bad; and that if Obama actually isn’t going to close Guantánamo, he should at least stop reinforcing the misperception that it’s pretty bad, and should explain why it’s pretty good. I disagree.

First, I don’t share Ben’s opinion that Guantánamo’s “not that bad.” I challenge anyone who says that to agree to let himself be imprisoned there — without charges, with no prospect of trial, separated for years if not decades from family, friends, and society, and with no end in sight. I grant that Guantánamo today is “more attractive” than “the other sites the U.S. has used,” but surely that’s to damn it with faint praise. It’s also a false choice. Obama should close Guantánamo and whatever evil cousins still exist.

Ben argues, in favor of Guantánamo, that detentions “are supervised by the federal courts in probing habeas corpus cases.” I don’t know what Ben means by “probing” in this setting. I do know that the D.C. Circuit has been making it ever easier for the government to justify detentions and has barred district court judges from compelling the government to release men found to be unlawfully detained. The D.C. Circuit has made habeas a right without a remedy, a situation the Supreme Court should rectify.

I agree that press attention helped force the government to improve conditions at Guantánamo. But where’s the “transparency” Ben applauds? The government’s allegations against a detainee are secret. The government’s evidence is secret. Court hearings are secret, and court decisions are censored. Government decisions about who has been approved for transfer, or been slated for indefinite detention, are secret. Reporters, human rights groups, and policymakers may not speak with detainees.

As Ben notes, it’s been reported that Obama is preparing an executive order creating a new detention review process. That’s old wine in new bottles. More review means more delay. Bush had his Administrative Review Boards, but when he left office, 59 cleared detainees were still at Guantánamo. Obama had his Guantánamo Review Task Force. Yet 90 detainees it approved for transfer — including some ARB-cleared detainees — remain at Guantánamo.

Like Ben, I’m not moved by Obama’s claim that Guantánamo is a recruiting tool for al-Qaeda, and that keeping the prison jeopardizes, not enhances, our security. Perhaps at the margins this is true, but whatever harm Guantánamo did in this regard, the harm’s largely been done. If anything is inflaming the Arab and Muslim worlds now, I believe, it’s not Guantánamo but Obama’s unmet promise to be different. Obama needs no excuse to close Guantánamo. Guantánamo should be closed because it’s wrong.

Sabin Willett on Embracing Guantánamo

I enjoy your sparring with Brother Remes.

Embrace it? The real question is whether we are a people who must hold a Taliban private until the Greek Kalends in order to feel safe. And are content to debate forever over how to try an alleged war criminal, rather than actually trying him. The Congress says we are that timorous a people. They appear to be right. We’re not our grandfathers, that’s for sure.

And we really aren’t a country committed to an independent judiciary, that’s become magnificently clear. You can have a habeas hearing, but you can’t have a judicial remedy. The Supreme Court issued a brave essay in 2008, but since then has beat a retreat from every engagement that would give its essay force. Quality of evidence, standard of appellate review, remedy. The essay has been filleted by the circuit. Full of sound and fury — but what does it signify? A fellow wins his case against the government and the remedy is for the court to say to the jailer, “please will you do something about it?”

Embrace it. Hmmm. The thing I’ve never understood is, why at least not convert GTMO to a POW camp? A real one? With real, honorable treatment of the enemy, as required by law and the service field manuals? Why the cages, interrogations, etc etc etc? Why arent there gardens, orchestras, newsletters, canteens, jobs — or were the Nazis (who had all those things in camps in Texas and Alabama) less dangerous than Taliban privates?

America is Winston Smith. You remember how Orwell’s 1984 ends.

[S]he loved Guantánamo.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

One Response

  1. Andy Worthington says...

    UPDATE

    David Remes sent the following by way of clarification (following Ben Wittes’ commentary on his response):

    I’d like to clarify two points with respect to my comments on Ben’s post, “Embracing Guantánamo.” First, in pressing the moral case for closing Guantánamo, I wasn’t lifting a curtain on “the real stakes for the left in the Guantánamo closure debate.” I was speaking only for myself, not “the left.” Second, I agree with those who argue that the continuing existence of the prison is provocative, and that closing the prison will lessen its potency as a rallying cry. For me, though, the primary reason to close Guantánamo is moral. In my view, that reason is sufficient, and no further reason is required.

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