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A Reply to Ken Jost

Tuesday, March 1, 2011 at 3:11 PM

In his thoughtful critique of Jack and my recent statements, Ken Jost makes three distinct points that are each worthy of consideration. I will address them in turn.

First, he writes, “The supposed dilemma seen by Goldsmith and Wittes is not, however, an inevitable aspect of the war on terror. The 48 Guantanamo detainees who have been deemed too dangerous to release but ‘not feasible for prosecution’ are thought to be in that category mostly because of torture-tainted evidence inadmissible in civilian or military tribunals.”

Jost’s premise here is at least questionable and very likely incorrect. For starters, the number 48 is a fiction. It reflects the group of people whom the Obama administration acknowledges it will not release and acknowledges it will never bring to trial. The number of people it will actually not release or bring to trial any time soon–that is, the number it has to hold in indefinite detention–is much larger. It includes not just those 47 (one of the original 48 detainees in this category has died), but just under 60 Yemenis whom the administration would either release immediately were it releasing people to Yemen (which it is not) or would release when conditions in Yemen improve (which they are not doing). The real figure also includes a group of people whom the administration slated for trial but ultimately will fail to bring to trial. Depending on how optimistic one is about trial prospects either in military commissions or in federal court, this could be a small handful or could be as many as 25 or 30 additional people. In other words, the pool of detainees at Guantanamo for whom non-criminal detention authority remains necessary is not as small as the administration’s numbers suggest.

More fundamentally, Jost is overstating the role that concerns about torture play in necessitating non-criminal detention even for the group of 48. In explaining why prosecution was not feasible for this group, the President’s Guantanamo Review Task Force explicitly stated that tainted evidence was not the main problem. Here’s how the group described the matter:

First, the vast majority of the detainees were captured in active zones of combat in Afghanistan or the Pakistani border regions. The focus at the time of their capture was the gathering of intelligence and their removal from the fight. They were not the subjects of formal criminal investigations, and evidence was neither gathered nor preserved with an eye toward prosecuting them. While the intelligence about them may be accurate and reliable, that intelligence, for various reasons, may not be admissible evidence or sufficient to satisfy a criminal burden of proof in either a military commission or federal court. One common problem is that, for many of the detainees, there are no witnesses who are available to testify in any proceeding against them.

Second, many of the detainees cannot be prosecuted because of jurisdictional limitations. In many cases, even though the Task Force found evidence that a detainee was lawfully detainable as part of al-Qaida—e.g., based on information that he attended a training camp, or played some role in the hierarchy of the organization—the Task Force did not find evidence that the detainee participated in a specific terrorist plot. The lack of such evidence can pose obstacles to pursuing a prosecution in either federal court or a military commission. While the federal material support statutes have been used to convict persons who have merely provided services to a terrorist organization, e.g., by attending a terrorist training camp, there are potential limitations to pursuing such a charge against the detainees.

Notably, the principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainee was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum, as described above (emphasis added).

Having overestimated the role of aggressive interrogation in encumbering current prosecutions, Jost then looks forward and over-estimates the likely impact of changed interrogation policy on prosecution of future captures: “With interrogation policies cleaned up—as the Obama administration claims—future detainees ought to be amenable to trial in one or the other forum.”

This is true to a point. Of the two major problems that the Task Force identified, one–the jurisdictional problem–has been significantly addressed by legal changes over the years. Future captures are thus much more amenable to prosecution than were people in 2001 and 2002. The other problem, that of evidence collection, can be addressed to point, but the mismatch between intelligence collection and analysis in military conflicts and evidence collection and preservation for presentation in court persists. This problem will not go away entirely. As long as the number of new detainees entering the system remains small, the chances of using the criminal justice system to process most or all of them increases dramatically. While there will still be some gap, the gap can be kept pretty small. That said, this only works if the numbers stay small, and at least in my opinion, it is a grave mistake to count on the numbers’ remaining small. As I put it in my book,

small numbers permit a great deal. As long as the numbers stay small, proxy detention in the theater of operations presents a viable option for a high percentage of cases. As long as the numbers stay small, the domestic criminal justice system can plausibly absorb and handle most of the relatively rare cases in which rendition or proxy detention is not a reliable alternative. And as long as the number of new detainees entering the U.S. detention system is a rounding error on the number of detainees leaving it—either through release or transfer to foreign custody—the newcomers can be hidden among the declining overall population. The American public and the world at large will continue to see a declining detainee population and are likely not to care that the aggregate number of detainees masks some new entrants into the system.

The trouble is that it seems unlikely that the numbers will remain small forever. Eventually—and eventually may come soon—the United States will have to deploy forces to some locationin the world where it lacks a local partner with the capacity to conduct our detentions for us. What happens then?

Finally, Jost concludes that “Instead of real trials, Goldsmith and Wittes acquiesce in a system of detention for the duration of the no-end-in-sight war on terror with limited review first through habeas corpus and then by an administrative board. Whatever changes may have been instituted at Guantanamo, this is not a system that the United States can convincingly sell to a skeptical world as fair and just.” This is a predictive judgment, and I’m not sure that it’s right. I suspect, however, that it is far more likely to prove correct if our posture towards the detention we engage in is one of shame than if we adopt a frank and candid attitude towards it. That is, if we maintain Guantanamo because we need it while promising to close it because we are ashamed of the need, if we rely on proxies rather than taking responsibility for our detentions ourselves, and if we pretend–even to ourselves–that we are getting out of the detention business and that it just the unfortunate legacy of the Bush administration, well then yes, we will convince nobody that that our policies are just or fair.

But that returns me to the point with which I began this debate, and which Jost was criticizing: If Obama is not going to close Guantanamo–and Obama is not going to close Guantanamo–then he needs to stop talking about it in a fashion that undermines its legitimacy and that reflects shame. He needs to talk about it in a fashion that recognizes the role it actually plays in U.S. detention policy. Guantanamo is a unique facility–unique in the review it provides, unique in its proximity, and unique in its transparency. If we were not so busy fretting about closing it, we might recognize it as a model.