Jennifer Daskal—who is a fellow at Georgetown law these days, after serving as NSD and working for Human Rights Watch—has a genuinely brave oped in the New York Times this morning entitled “Don’t Close Guantanamo.” It argues, against all current orthodoxy in the human rights movement, that at least in the short term, Guantanamo should remain. The reason?
While I have been slow to come to this realization, the signs have been evident for some time. Three years ago, Barack Obama’s administration conducted a comprehensive review of the Guantánamo detainees and concluded that about four dozen prisoners couldn’t be prosecuted, but were too dangerous to be transferred or released. They are still being held under rules of war that allow detention without charge for the duration of hostilities.
Others happened to hail from Yemen. Although many of them were cleared for transfer, the transfers were put on indefinite hold because of instability in Yemen, the fear that some might join Al Qaeda forces, and Yemen’s inability to put adequate security measures in place.
While the specific numbers have most likely shifted over time, the basic categories persist. These are men whom the current administration will not transfer, release or prosecute, so long as the legal authority to detain, pursuant to the law of war, endures.
President Obama raised the hopes of the human rights community when during his re-election campaign he once again said the detention center should be closed. But it was not clear whether he had a viable plan, and any such plan would almost certainly involve moving many of the detainees into continued detention in the United States, where their living conditions would almost certainly deteriorate.
. . .
The political reality is that closure of Guantánamo is unlikely to happen anytime soon, and if it did, it would do more harm than good. We should instead focus on finding places to transfer those cleared to leave the facility and, more important, on defining the end to the war.
I have been arguing something very similar to this—albeit with a different inflection and slightly different underlying arguments—for two years now. But the truth is that the argument is different coming from Jen, a committed human rights advocate, than coming from me. The human rights movement has been rigidly and dogmatically—and irrationally—dug in on this matter. And very few people have had the guts to state simply that given the way things have played out, Guantanamo’s closure isn’t the ideal outcome. If the administration could come to where Jen has come here, significant policy opportunities for a different relationship with Congress over detention would open up. It’s great that Jen is willing to say in public that the emperor has no clothes.