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