Today the NYT published a news analysis article I co-wrote with my colleague Scott Shane, our first team-up since he went on book leave for Objective Troy and then I went on book leave for Power Wars. It makes the case that much of the political rhetoric about Obama’s Guantanamo prison closure plan is garbage. Most of the article is devoted to explaining how numerous claims put forth by Obama’s Republican critics are demonstrably false. But the article also dings Obama for putting forth an argument that collapses under scrutiny as well. Over at Just Security, Marty Lederman (who helped craft the Obama administration’s national security legal policy at the Office of Legal Counsel in 2009-10) has put up a post that praises most of the article but disputes the part about Obama’s argument, suggesting that we have engaged in false equivalence. This post is a rebuttal to Lederman .
Specifically, the article knocks Obama for arguing that the United States should carry out his closure plan because the continued operation of the prison at Guantanamo is “contrary to our values.” We observed:
Yet a key argument Mr. Obama makes for shuttering the prison in Cuba — that its continued operation is contrary to “our values” — crumbles upon examination, too. His plan for closing it would not eliminate the main human rights complaints, because the United States would still be holding several dozen prisoners in perpetual detention without trial and force-feeding those who go on a hunger strike. It would just do that in a prison on American soil. …
Bowing to pragmatism, Mr. Obama decided those detainees [who were untriable but deemed too dangerous to release] would have to remain locked up without trial for the time being. He also accepted the principle that some detainees would be tried by military commission, not in civilian court, in part because the looser military rules of evidence would allow trials for more of those held.
From that moment, his plan could no longer be a clarion call to restore a pre-Sept. 11, 2001, understanding of the rule of law and to vindicate human rights. Instead, the administration has offered a hodgepodge of practical considerations, like saving money and rebranding detention to leave behind the toxic image of shackled prisoners in orange jumpsuits from Guantánamo’s early years.
In his post, Lederman acknowledges that under Obama’s closure plan, the United States would still be holding the some of the same men in indefinite detention without trial (and forcefeeding those who protest via hunger strike), just in a different location. He says Obama does not deny that, but he maintains that the president doesn’t think using law-of-war detention is a good thing either, that Obama has prevented this practice from growing, and that Obama would like to end it if he saw any responsible way to do so.
To this point we agree. But Lederman goes on to argue that Shane and I missed the mark in criticizing Obama for nevertheless insisting, as one of the core arguments that he musters in support of carrying out his Gitmo prison closure plan, that the continued operation of the Gitmo prison is “contrary to our values.”
What about the President’s claim that continuing the GTMO operation is “contrary to our values”? Savage and Shane’s account does not call that claim into question at all, let alone make it “crumble.” In a recent veto statement, the President also asserted that “the continued operation of this facility weakens our national security by [i] draining resources, [ii] damaging our relationships with key allies and partners, and [iii] emboldening violent extremists.” Savage and Shane do not suggest that these claims are mistaken, let alone show that they crumble upon examination; nor do they try to show that moving the final few dozen detainees to the United States would not diminish each of these three harmful costs of keeping GTMO open.
This is a non-sequitur. Lederman asserts that we do not show how Obama’s “our values” claim is empty, and then he goes on to list three pragmatic claims Obama makes that we did not quarrel with. But Lederman’s critique makes sense only if Obama’s invocation of “our values” is redundant. It has to be surplusage, a mere reiteration of Obama’s claim that Gitmo’s problematic past during the Bush years — when interrogators used torture and other abusive tactics there, when the U.S. government proclaimed it a law-free zone where courts had no jurisdiction and the Geneva Conventions did not apply — has left a negative lingering impression that, as long as that particular facility remains open, causes frictions with our allies and aids our enemies. Lederman is denying that Obama’s invocation of “our values” has anything to do with the human rights and rule-of-law concerns raised by critics of the ongoing detention practices at Gitmo — those who oppose the continued use of indefinite law-of-war detention without trial in the essentially endless war on terror, even if detainees today are not tortured and may bring habeas corpus lawsuits.
The problem is that Obama’s rhetoric sweeps more broadly than Lederman’s limited account. In 2013, for example, when Obama vowed to reinvigorate his moribund closure plan amid a widespread hunger strike and mass forcefeeding operations, he said this:
The idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are, it is contrary to our interests, and it needs to stop. … I think all of us should reflect on why exactly are we doing this? Why are we doing this? We’ve got a whole bunch of individuals who have been tried who are currently in maximum security prisons around the country. Nothing has happened to them. Justice has been served. It’s been done in a way that’s consistent with our Constitution, consistent with due process, consistent with rule of law, consistent with our traditions.
That’s not about getting further away from the toxic image of past misdeeds that have long been corrected. That’s expressing opposition, on grounds of American values, to continuing to hold people in indefinite detention without trial going forward. This sentiment just cannot be coherently reconciled with the fact that his plan to close Gitmo was and is to imprison some of the same men indefinitely and without trial, just in a different prison.
Similarly, in Obama’s remarks when he unveiled the “plan” last month, he made clear that his closure plan would achieve those three pragmatic advantages Lederman cites — which include the two ways that rebranding would better capture benefits from the already-completed correction of past misdeeds. But Obama then went on to add a “values” argument that is clearly a fourth claim, something on top of that:
[The Gitmo prison is] counterproductive to our fight against terrorists, because they use it as propaganda in their efforts to recruit. It drains military resources, with nearly $450 million spent last year alone to keep it running, and more than $200 million in additional costs needed to keep it open going forward for less than 100 detainees. Guantanamo harms our partnerships with allies and other countries whose cooperation we need against terrorism. When I talk to other world leaders, they bring up the fact that Guantanamo is not resolved.
Moreover, keeping this facility open is contrary to our values. It undermines our standing in the world. It is viewed as a stain on our broader record of upholding the highest standards of rule of law. As Americans, we pride ourselves on being a beacon to other nations, a model of the rule of law.
Look. Obviously Obama doesn’t like long-term law-of-war detention without trial and in a perfect world, he would prefer to end it. That’s why he’s refused to use it as a disposition option for newly captured terrorism suspects and has set up a process whereby it may eventually wither away under a successor presidency, in contrast to the Republican view that it should be used routinely for new captures. But having accepted it as a legitimate tool to be used when national security officials deem it necessary to keep holding a legacy Gitmo detainee who cannot be tried, Obama cannot coherently suggest that his closure plan would bring an end to detention practices that are “contrary to our values.” He’s got three other rationales to support his plan that more or less make sense, but for some reason he insists on gilding the lily with this argument, which doesn’t.