Detention and Denial: The Case for Candor after Guantanamo

Acknowledgments

vii Acknowledgments Ihope very much that this brief volume will be the last thing that I ever publish on the subject of detention, though I somehow fear that it will not. I honestly do not know what it says about me that counterterrorism detention has become a subject close to my heart, but over the past few years, the subject has grabbed me and refused to let go. I have addressed it at every level that I can—from dense doctrinal analyses to detailed legislative proposals to books and newspaper op-eds. This book represents an attempt to break through to somewhat higher ground, to break free of the case details in which this debate often rightly lives and to talk about some of the broad themes and principles that underlie the debate. It is in some significant respects a distillation of prior, more technical work, but it also advances a thesis of its own—one that is decidedly nontechnical in nature. I have intentionally written it in a conversational style aimed at the general interest reader. I have eschewed notes except where necessary to document direct quotations, legal cases, and statutes. I have tried to discuss the subject of detention throughout at a level accessible not just to lawyers and security specialists but to anyone who cares about finding a reasonable approach to a set of vexing problems. It is really an essay about the gap between where we are as a society on this subject and where I believe we need to be. 00-0491-1 fm.indd 7 10/14/10 6:10 PM viii Acknowledgments My more neurotically devoted readers (there are only a few, I know) will notice that it has some thematic overlap with my earlier book, Law and the Long War: The Future of Justice in the Age of Terror, and that in a few areas it reflects some development of my thinking as well. The development is a consequence both of certain changes in my own views, which have been influenced by the work of others in the years since I wrote Law and the Long War, and of changed circumstances that I did not foresee at the time. The chief change in my views involves the value and power of the criminal justice system. In the period since I wrote Law and the Long War, owing chiefly to especially persuasive work by Robert Chesney, I have come to believe that criminal justice represents a more powerful tool in the government ’s arsenal for certain types of detention cases than I had earlier assumed—particularly in circumstances like the present, when the number of new detainees in the system has remained small for a protracted period of time. The chief circumstantial changes involve the precipitous decline in the number of detainees in U.S. custody around the world, the adjudication by the federal courts of dozens of individual detainee cases, and a change of administration that did not precipitate a dramatic reconsideration of the premises of U.S. detention policy. In my work, as in the detention policy that it treats, there are some elements of change alongside dominant elements of continuity. My debt to several coauthors and colleagues, which is a constant that always exceeds what one can express in a few brief paragraphs, is especially extreme in the case of this volume, which draws significantly on their work as well as mine. Two of the chapters adapt highly collaborative work that I had published earlier with others, who deserve a great deal of the credit for the analytical insights, research, and even bits of the text contained in the chapters. Specifically, the discussion in chapter 2 draws pervasively on work that I did with Adam Klein, a law student sent my way by his professor, Matthew Waxman. I am indebted to 00-0491-1 fm.indd 8 10/14/10 6:10 PM Acknowledgments ix Klein for a great deal of the research that the chapter reflects and to Waxman for introducing us. Similarly, the analysis in chapter 3 of the Guantánamo habeas litigation distills and updates a voluminous report of which I was not the sole author. It was written also by Chesney and Rabea Benhalim, and the chapter throughout reflects their insights and efforts as well as mine. To a somewhat lesser but still significant extent, chapter 5 draws on work that I did with...