Detention and Denial--From the Introduction

By Benjamin Wittes
Thursday, December 30, 2010, 8:24 AM

"The greatest trick the Devil ever pulled was convincing the world that he didn’t exist,” says the low-grade con man to the arrogant customs agent in the 1995 movie The Usual Suspects, speaking of the great criminal mastermind Keyser Söze. The supposedly crack customs agent Kujan listens with patronizing incredulity to stories of the untrackable, invincible Söze, convinced that he knows the truth and that over time he can get the con man before him to spill the beans. Only in the movie’s final seconds does Agent Kujan realize that the con man himself is the master criminal—or at least someone who is exploiting his legend. And, having convinced Kujan that he doesn’t exist, he disappears: “And like that—he’s gone!”

U.S. counterterrorism policy has a bit of Agent Kujan’s Keyser Söze problem. The more successfully our forces take on the enemy, the less people believe that the Devil really exists—at least as an urgent public policy problem requiring the sort of tough measures that challenge other interests and values. The longer the United States goes without suffering a mass casualty attack on the homeland, the less apt people are to believe that al Qaeda and its affiliates and offshoots really pose a lethal threat, that September 11 was more than a lucky strike, that terrorism poses challenges that we cannot address through conventional law enforcement means alone, or that the problem ranks as high as other pressing challenges of the moment--challenges that, unlike al Qaeda, visibly threaten harm on a daily basis. Oil spills, job losses, the national debt, China’s rise, and North Korea’s saber rattling are all visible with the naked eye. We do not have the option of disbelief. Yet the more effectively we conduct counterterrorism, the more plausible disbelief becomes and the more uncomfortable we grow with policies like noncriminal detention, aggressive interrogation, and extraordinary rendition. The more we convince ourselves that the Devil doesn’t really exist, the less willing we are to use those tools, and we begin reining them in or eschewing them entirely. And we let the Devil walk out of the room.

In the case of detention, the subject of this volume, I mean that rather literally. Of the nearly 800 men that the U.S. military brought to its detention facility at Guantánamo Bay, Cuba, as combatants in the war on terror, fewer than 180 remained in U.S. custody as of the summer of 2010. Under the administrations of George W. Bush and Barack Obama alike, we have willingly let dangerous people walk out of the room. Most of them have proven to be low-level nonentities who go home and demobilize. Some have been innocent, detained in error. Some, however, have turned out to be if not quite master criminals, certainly people whose release proves a far greater evil than their detention ever did. We have released future suicide bombers and terrorist leaders. And there have been disappearing acts too. Nobody knows at this stage whether we will come to see the number of such individuals as a manageable and acceptable cost of reducing the U.S. detention rate or whether we will come to see our willingness to let large numbers of suspects walk out the door as a folly akin to Agent Kujan’s.

Ironically, it is not just the Devil who is trying to convince theworld—and us—that he doesn’t exist. We are playing something of a similar game with some of those very counterterrorism policies, which—as a result of bad experiences, complacency, and the passage of time—have become embarrassing. We have learned that detention infuriates people around the world, creates difficult legal problems, and troubles our collective conscience. Yet finding ourselves unable to abolish it entirely and unwilling to face the many troubling questions associated with reforming it, we have chosen denial and obfuscation instead: we pretend that noncriminal detention doesn’t exist or that we’re phasing it out. In other words, even as the Devil is conning us into believing that he no longer exists, we have begun trying to con the world—and ourselves—into believing that we are no longer detaining him.

The Western world does not believe in detention. Even when Western nations need detention, they do not believe in it or want to acknowledge it, and so, over the years, they have developed elaborate systems for pretending that they do not engage in it. The main vehicle for the West’s pretense has been us, the United States; in more recent years, the Afghan government has played an increasingly important role in helping the West pretend. None of the United States’ major coalition partners in Afghanistan engages in protracted detentions. But then again, why would they? The United States does it for them. While U.S. forces have the authority to hold the Taliban or al Qaeda operatives that they capture, coalition forces do not. Under standard coalition procedures, they either turn detainees over to the Afghan criminal justice system within ninety-six hours of capture or they release them. The result is that, in practical terms, U.S. detention operations and Afghan prosecutions function on behalf of the coalition as a whole. Given that the United States is far more secure from terrorism than is Europe, it seems highly likely that U.S. detention operations have done more—probably much more—to protect European security than U.S. security. Yet not only have European countries refused to participate in detention operations, they also have become the principal critics of U.S. detention operations.

This peculiar arrangement—under which the United States conducts detentions on behalf of the West as a whole while our European allies refuse to participate in those operations in any meaningful way and energetically criticize them besides—mirrors the larger relationship between the United States and Europe on security matters. It is part of a broader pattern of European free riding on the U.S. security umbrella. European countries enjoy all of the benefits of a robust detention policy and incur none of the costs. The United States neutralizes dangerous enemies who pose a threat to both European forces in the field and European civilians at home. At the same time, Europe washes its hands of a policy that would raise political hackles at home—just as it does in the United States—and European officials neatly insulate themselves from the very difficult policy problems associated with detention. Indeed, they can publicly take the high road vis-à-vis the United States and pretend to maintain a pure law enforcement model for conducting counterterrorism operations. It is an ideal detention arrangement for a public that doesn’t believe in detention.

We should not wax too contemptuous, however, for we are fastbecoming the new Europeans. Beginning under the last administration and more decisively under the current one, the United States has moved to rejoin the Western consensus that detention should be conducted out of view and preferably by proxies. Indeed, U.S. detention policy is moving exactly in the direction of this obfuscatory model. The announcement, with great fanfare, of the closure of Guantánamo but not of the less visible detention facility at the Bagram air base in Afghanistan is only the most dramatic example of the embrace of obfuscation, denial, and hypocrisy. Both the Bush and Obama administrations had opportunities to enshrine U.S. detention policy in law—a move that would have legitimized detention by stating clearly the circumstances under which Congress regards it as appropriate and will publicly stand behind it. Yet both passed up the chance. Significantly, the Obama administration did so to loud cheers from its political base. Moreover, the United States increasingly relies on Afghans and other foreign proxies to handle our detentions in a fashion that closely mirrors the way that Europeans have long relied on the United States.

But in keeping our detentions out of sight, the United States has a big problem that Europe does not have: We don’t have an America that can both do our dirty work and absorb our simultaneous criticism to ease our own consciences. While we can pawn off some detainees on local proxies, there is no extrinsic power whose detention needs entirely subsume our own and who therefore will serve all of our detention needs so that we don’t have to—even while we complain about it in public. Europe can have a no-detention policy because it knows that the United States will pick up the slack. Nobody, however, will pick up enough of our slack to allow us the same luxury. We can minimize detention. Through a combination of prosecution, release, proxies, and Predator attacks, we can keep the number of detainees small, at least for now. But at the end of the day, the United States cannot avoid detention entirely, not even under the Obama administration. The Obama administration itself has come to understand that. To protect U.S. security and the security of its allies, the United States simply has to maintain some detention capacity in a world that doesn’t believe in the project of detention anymore.

Unsurprisingly, developing a detention policy for such a world turns out to be rather hard.