Detention and Denial
The Case for Candor after Guantanamo
Publication Year: 2011
"Our current stalemate over detention serves nobody not the military or any other component of the U.S. government that has to operate overseas.... It is a system that no rational combination of values or strategic considerations would have produced; it could have emerged only as a consequence of a clash of interests that produced a clear victory for nobody." from the Introduction
Benjamin Wittes issues a persuasive call for greater coherence, clarity, and public candor from the American government regarding its detention policy and practices, and greater citizen awareness of the same. In Detention and Denial, he illustrates how U.S. detention policy is a tangle of obfuscation rather than a serious set of moral and legal decisions. Far from sharpening focus and defining clear parameters for action, it sends mixed signals, muddies the legal and military waters, and produces perverse incentives. Its random operation makes a mockery of the human rights concerns that prompted the limited amount of legal scrutiny that detention has received to date. The government may actually be painting itself into a corner, leaving itself unable to explain or justify actions it may need to take in the future. The situation is unsustainable and must be addressed.
Preventive detention is a touchy subject, an easy target for eager-to-please candidates and indignant media, so public officials remain largely mum on the issue. Many Americans would be surprised to learn that no broad principle in American jurisprudence actually prohibits preventive detention; rather, the law "eschews it except when legislatures and courts deem it necessary to prevent grave public harm." But the habeas corpus legal cases that have come out of the Guantánamo Bay detentionfacility which remains open, despite popular expectations to the contrary have addressed only a small slice of the overall issue and have not and will not produce a coherent body of policy.
U.S. government and security forces need clear and consistent application of their detention policies, and Americans must be better informed about them. To that end, Wittes critiques America's current muddled detention policies and sets forth a detention policy based on candor. It would set clear rules and distinguish several types of detention, based on characteristics of the detainees themselves rather than where they were captured. Congress would follow steps to "devise a coherent policy to regulate the U.S. system of detention, a system that the country cannot avoid developing."
Published by: Brookings Institution Press
Table of Contents
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The greatest trick the Devil ever pulled was convincing the world that he didn’t exist,” says the low-grade con man to the arrogant customs agent in the 1995 movie The Usual Suspects, speaking of the great criminal mastermind Keyser Söze. The supposedly crack customs agent Kujan listens with patronizing incredulity to stories of the untrackable, invincible Söze, convinced that he knows the truth and that over time he can get the con man before him to spill the beans.
Current U.S. Policy
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By the end of Barack Obama’s first year in office, the new president’s promise to close Guantánamo had become an albatross around his neck. In numerical terms, at least, he had made relatively little progress toward emptying the facility. His muchvaunted order to bring detainees to trial had produced only a single indictment in federal court. Military commission proceedings moved forward at the pace of a glacier—and, as they always had, involved only a small percentage of detainees.
The Mythology and Reality of Preventive Detention in the United States
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It is an article of faith in our discourse on terrorism that preventive detention runs counter to American values and law. That meme has become standard among civil liberties and human rights groups and in a great deal of legal scholarship, which treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong constitutional norm that holds that government locks up citizens only as criminal punishment, not because of mere fear of their future acts.
The Emerging Law of Detention
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Its serial failures of candor with respect to detention unfortunately cannot relieve the United States of the burden of detention. Consequently, they also will not relieve it of the need for various systems of rules, norms, and procedures to handle the various types of people that U.S. forces and their proxies will end up capturing. The political system’s refusal to engage seriously over the question simply delegates the foundational decisions regarding the contours of those systems to other actors.
The Problems That Denial Cannot Solve
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Building a detention policy on a premise of obfuscation and denial is a project beset with problems. It both begins with and flatters a myth: that the United States does not do preventive detention. By flattering that myth, it both constrains and delegitimizes policymaking that greater candor would to some degree liberate. Because the nature of the project precludes any direct discussion of the contours of a reasonable detention system, it effectively delegates policymaking to bodies that should not be making U.S. military and national security policy—from corrupt and imperfect foreign proxy governments to domestic courts.
The Case for Candor
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No one seriously defends the current array of U.S. detention policies. The government, of course, defends individual policies against court challenges, but it also has fiercely resisted other elements of current policy prior to their judicial imposition. Human rights groups and lawyers for detainees admire some of the current elements of the array and challenge others as affronts to the rule of law. A great many people defend current policies as a tactical matter, believing that to open them up to renegotiation would make the situation worse than it already is.
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In both liberal and conservatives circles, a certain confusion reigns regarding whether fundamentally the Obama administration’s legal policies in counterterrorism matters reflect continuity with or change from those of the Bush administration. The confusion gives rise to a kind of dualism in the way that both broad political movements talk about the question.
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Page Count: 160
Publication Year: 2011