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More Rights at Gitmo, Fewer Elsewhere?

Jack Goldsmith observes that the expansion of legal rights for Guantanamo detainees and restrictions on rendition have been offset by other measures designed to compensate for the costs of the new limitations.

A little-noticed consequence of elevating standards at Guantanamo is that the government has sent very few terrorist suspects there in recent years. Instead, it holds more terrorists -- without charge or trial, without habeas rights, and with less public scrutiny -- at Bagram Air Base in Afghanistan. Or it renders them to countries where interrogation and incarceration standards are often even lower. The cat-and-mouse game does not end there. As detentions at Bagram and traditional renditions have come under increasing legal and political scrutiny, the Bush and Obama administrations have relied more on other tactics. They have secured foreign intelligence services to do all the work -- capture, incarceration and interrogation -- for all but the highest-level detainees. And they have increasingly employed targeted killings, a tactic that eliminates the need to interrogate or incarcerate terrorists but at the cost of killing or maiming suspected terrorists and innocent civilians alike without notice or due process.

As Goldmsith notes, this shift may have negative consequences for both intelligence gathering and human rights -- but it has PR benefits. As Goldsmith concludes:

After nearly eight years without a follow-up attack, the public (or at least an influential sliver) is growing doubtful about the threat of terrorism and skeptical about using the lower-than-normal standards of wartime justice. The government, however, sees the terrorist threat every day and is under enormous pressure to keep the country safe. When one of its approaches to terrorist incapacitation becomes too costly legally or politically, it shifts to others that raise fewer legal and political problems. This doesn't increase our safety or help the terrorists. But it does make us feel better about ourselves.

Related Posts (on one page):

  1. More Rights at Gitmo, Fewer Elsewhere?
  2. Does Jack Goldsmith Prefer Barack Obama to Dick Cheney?
Bruce Hayden (mail):
I am just surprised that anyone is surprised at this. The detainees were sent to Gitmo so that U.S. Constitutional rights would not attach to the detainees. It was close and secure, but not in the U.S.

So, instead, we are now leaving them back in Afghanistan, or, likely worse, leaving them with or giving them to other governments.
5.31.2009 10:37pm
Rick Barnes (mail):
In an admittedly crude way, this parody shows how outsourcing interrogations can only lead to more confusion regarding results and responsibility:

www.optoons.blogspot.com
5.31.2009 10:52pm
EricH (mail):
This:
The public (or at least an influential sliver) is growing doubtful about the threat of terrorism and skeptical about using the lower-than-normal standards of wartime justice.

And this:

The government, however, sees the terrorist threat every day and is under enormous pressure to keep the country safe

...don't add up for me.

Where does the pressure come from? Internal voices?

And I'm less sure that the public is "sceptical about using the lower-than-normal standards of wartime justice." Certainly, more sceptical now than five years ago. Or even two.

But the public as a whole (50%+one?).
5.31.2009 10:56pm
JimmyL (mail):
Some detainees at Bagram (specifically non-Afghan detainees who were captured elsewhere) do have habeas rights. See Maqaleh v. Gates, No. 06-1669 (D.C.D.C. Apr. 2, 2009) (Link).

So merely shifting the detention elsewhere may not be the key. And in any event, it seems like there will always be legal challenges to a detention (at least when they are known and not secret), regardless of the means used to detain.
5.31.2009 11:17pm
FantasiaWHT:
This reminds me of oil drilling. If we went after our own, we'd do it more safely and with more environmental safeguards than anywhere else, but the environmentalists won't let us drill our own, so instead we get it from other countries and thereby cause a greater environmental harm, which the environmentalists were trying to avoid...
6.1.2009 12:20am
A. Zarkov (mail):
Why are civil right's lawyers so concerned about terrorists, but so little concerned about the lack of free speech spreading throughout the western world? In the UK you can be sent to jail for thought crimes just like in Orwell's 1984. Some of the least free places in the US are college campuses as one can see from browsing the material on the FIRE website. I would not walk on the UC Berkeley campus wearing a kippah. It's too dangerous.
6.1.2009 5:41am
devil's advocate (mail):
EricH


This:

The public (or at least an influential sliver) is growing doubtful about the threat of terrorism . . .



And this:


The government, however, sees the terrorist threat every day. . . .



...don't add up for me.


I think he is speaking from his experience of that threat and pressure within government. That is not to say that such a perception provides an objective perch, but certainly, given the position he held, and the skepticism about government methods to which he has contributed, I would give him the benefit of the doubt as a reasoned duality of outlook that gives rise to this conundrum.

Regardless of the rate of change of public mood, whether it be 50% plus 1 or whatever, the point about a floodwall effect in focus on Gitmo seems quite reasonable.

brian
6.1.2009 6:42am
iowan (mail):
This helps me reframe the discussion. Do I place higher value on the United States principles of rights of the accused? Or? What actualy happens to the accused? Principle, or, people?
6.1.2009 8:12am
Joe T Guest:

The government, however, sees the terrorist threat every day. . . .

...don't add up for me.


I guess when you get used to seeing top secret programs disclosed on the front page of the NY Times, you get an expectation that everything the government knows, including the details of live investigations and intelligence operations, is routinely shared with the punditocracy and the 535 members of Congress.
6.1.2009 8:43am
dmv (www):

Why are civil right's [sic] lawyers so concerned about terrorists, but so little concerned about the lack of free speech spreading throughout the western world?

First, American lawyers are likely to care more about how their own government is misbehaving than what Europeans are doing.

Second, I imagine that if someone tries to push under the heading of "freedom of expression" limitations on speech about, say, religion (see the Durbin conference and related phenomena), the ACLU will jump on it. I don't really see our strong tradition of free speech to be in danger. And I'm one of those people you so often belittle who thinks that the rest of the world does, to some degree, matter.

Third, I know plenty of lawyers (including, gasp, ohnoez, NGOs) concerned about the recent international drift towards restricting freedom of expression and speech.

What's the next false dilemma?
6.1.2009 8:49am
Seamus (mail):

This doesn't increase our safety or help the terrorists suspects.


Fixed.
6.1.2009 10:04am
Mark Buehner (mail):
Anyone surprised by this needs to get out more. Ultimately this is just plain sensible- gathering those terrorists at Guantanamo in the inevitable media spotlight was utterly pointless and counterproductive to begin with. Why was this such a gray area in the law in so many different ways? Simple- because other administrations and nations had the good sense to disapear people like this instead of putting them on display. The only answer to the question of what happened once Pakistan arrested Kalid Mohammed should have been 'no comment'. No body, no story.
6.1.2009 10:24am
Kevin P. (mail):
We should have done this in the very first place. We should never have set up Guantanamo Bay to be a detention camp in the first place. All that it accomplished was to become a lightning rod for leftists around the world.

We should have kept the detainees in the tender custody of our allies who would have given us access to them for interrogations as we needed it.
6.1.2009 10:27am
A. Zarkov (mail):
dmv:

"First, American lawyers are likely to care more about how their own government is misbehaving than what Europeans are doing."

But our government is about to deport an asylum seekers from Britain who received a criminal conviction in the UK for merely putting an article on the Internet. It's true that they wrote despicable articles, but free speech is all about protecting unpopular speech. I don't notice very many American lawyers coming to their aid they way they do for other asylum seekers. This is clearly something the US government is doing.

Second, I imagine that if someone tries to push under the heading of "freedom of expression" limitations on speech about, say, religion (see the Durbin conference and related phenomena), the ACLU will jump on it.

Where is the ACLU fighting campus speech codes? Time and again its FIRE that aids the students. Try seeing if your law firm would support pro bono work for FIRE.

"And I'm one of those people you so often belittle ..."

Have I ever belittled you personally? Besides as far I can remember, I have never said the rest of the world does not matter. I think it's a mistake to make a fetish out of public relations, but that's a far cry from saying "doesn't matter." If I have point me to it.

Third, I know plenty of lawyers (including, gasp, ohnoez, NGOs) concerned about the recent international drift towards restricting freedom of expression and speech.

What are they doing about the drift?

"What's the next false dilemma?"

There's noting false about worrying about free speech. Sotomayor is a member of the La Raza (The Race) organization, and La Raza is supports curtailment of speech. For example I saw executives from La Raza on the Lou Dobbs show telling Dobbs his program should be put off the air. Ditto for other people whose speech they don't like, such as Pat Buchanan. They claim any critique of immigration is hate speech and hate speech is not free speech. If you support free speech as much as you support rights for terrorists, then you should worry about putting someone on the Supreme Court who is a member of this organization.
6.1.2009 10:36am
einhverfr (mail) (www):
A Zarkov:

Why are civil right's lawyers so concerned about terrorists, but so little concerned about the lack of free speech spreading throughout the western world?


Because all just governments derive their powers from the governed. The UK government does not govern me, therefore my consent is irrelevant.
6.1.2009 12:41pm
Lou Gots (mail):
None of this discussion extends to what is to be done with ordinary prisoners of war--not the "unlawful combatants"--to use the journalists' shorthand expression, but the lawful ones. Certainly many people taken into custody in the midst of a war are P.O.W.'s without being suspected or accused war criminals. What happens to these folks? The hornbook answer is that they are held as prisoners until the war is over and then simply released.

The reason this come up is that P.O.W.'s have done nothing wrong and there is no reason to take them before any civilian court whatsoever. What is not done with them, however, would be to let them go before the war is over. No "catch-and-release," for they would very likely have to be fought all over again, it being their duty to return to their country's armeed force as soon as possible..
6.1.2009 12:47pm
A. Zarkov (mail):
einhverfr:

"The UK government does not govern me, therefore my consent is irrelevant."

You are ducking the question. The US is about to deport someone who will go to jail for a thought crime in the UK and you are indifferent. You also suggest that the UK does not care about its international image. Funny how we are told we must give due process to captured enemy combatants to bolster the US image.

You have provided a good example that supports my assertion.
6.1.2009 1:05pm

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