David Remes on Embracing Guantanamo

By Benjamin Wittes
Wednesday, January 26, 2011, 7:02 AM

Habeas lawyer David Remes sent me yesterday the following comments on my earlier post suggesting that it's time for President Obama to embrace Guantanamo. I want to draw attention very briefly to two aspects of his note. First, it is a model of moral passion and tough-minded criticism (of my work) that remains civil at all times. Second, there is, at the end of David's piece, a useful point of common ground with my argument that he is criticizing: A skepticism that Guantanamo is really a problem for national security. For David, rather, Guantanamo presents a moral problem. This point is enormously clarifying--candidly identifying the real stakes for the left in the Guantanamo closure debate. I wish the administration were so forthright:

Ben argues that since President Obama is not going to close Guantanamo, he should stop saying he wants to close it, and should embrace it. Of course, Obama has failed to close Guantánamo, and Congress has hemmed him in. But Obama should close Guantánamo. He should at long last muster the political will to close it. The one thing he should not do is declare his failure a success.

I understand Ben to be saying that Guantánamo is really pretty good, all things considered; that in saying Guantánamo should be closed, Obama is only reinforcing the misperception that Guantánamo is really pretty bad; and that if Obama actually isn’t going to close Guantánamo, he should at least stop reinforcing the misperception that it’s pretty bad, and should explain why it’s pretty good. I disagree.

First, I don’t share Ben’s opinion that Guantánamo’s “not that bad.” I challenge anyone who says that to agree to let himself be imprisoned there--without charges, with no prospect of trial, separated for years if not decades from family, friends, and society, and with no end in sight. I grant that Guantanamo today is “more attractive” than "the other sites the U.S. has used,” but surely that’s to damn with faint praise. It’s also a false choice. Obama should close Guantánamo and whatever evil cousins still exist.

Ben argues, in favor of Guantánamo, that detentions “are supervised by the federal courts in probing habeas corpus cases.” I don’t know what Ben means by “probing” in this setting. I do know that the D.C. Circuit has been making it ever easier for the government to justify detentions and has barred district court judges from compelling the government to release men found to be unlawfully detained. The D.C. Circuit has made habeas a right without a remedy, a situation the Supreme Court should rectify.

I agree that press attention helped force the government to improve conditions at Guantánamo. But where’s the “transparency” Ben applauds? The government’s allegations against a detainee are secret. The government’s evidence is secret. Court hearings are secret, and  court decisions are censored. Government decisions about who has been approved for transfer, or been slated for indefinite detention, are secret. Reporters, human rights groups, and policymakers may not speak with detainees.

As Ben notes, it’s been reported that Obama is preparing an executive order creating a new detention review process. That’s old wine in new bottles. More review means more delay. Bush had his Administrative Review Boards, but when he left office, 59 cleared detainees were still at Guantánamo. Obama had his Guantánamo Review Task Force. Yet 90 detainees it approved for transfer--including some ARB-cleared detainees--remain at Guantánamo.

Like Ben, I’m not moved by Obama’s claim that Guantánamo is a recruiting tool for al-Qaeda, and that keeping the prison jeopardizes, not enhances, our security. Perhaps at the margins this is true, but whatever harm Guantánamo did in this regard, the harm’s largely been done. If anything is inflaming the Arab and Muslim worlds now, I believe, it’s not Guantánamo but Obama’s unmet promise to be different. Obama needs no excuse to close Guantánamo. Guantanamo should be closed because it’s wrong.

UPDATE

David sent in the following by way of clarification:

I'd like to clarify two points with respect to my comments on Ben's post, “Embracing Guantánamo.” First, in pressing the moral case for closing Guantánamo, I wasn't lifting a curtain on “the real stakes for the left in the Guantánamo closure debate.” I was speaking only for myself, not “the left.” Second, I agree with those who argue that the continuing existence of the prison is provocative, and that closing the prison will lessen it’s potency as a rallying cry. For me, though, the primary reason to close Guantánamo is moral. In my view, that reason is sufficient, and no further reason is required.