Detention & Guantanamo

A Face-Palmingly Bad Argument on Guantanamo

By Benjamin Wittes
Wednesday, June 22, 2016, 12:20 PM

The New York Times's latest editorial on Guantanamo is so packed full of confused thinking and weird non-sequiturs that I want to go through its claims and logic (such as it is) line by line.

Published on Monday under the headline, "The Broken Promise of Closing Guantanamo," the editorial begins with the anodyne observation that closing Guantanamo was not a source of controversy between the major party candidates eight years ago:

Eight years ago, presidential candidates John McCain and Barack Obama agreed on one issue: It was time to shut down the prison at Guantánamo Bay, Cuba.

Asked about his position on Guantánamo, Mr. McCain, a former prisoner of war, said his view had been reinforced by meeting an operative of Al Qaeda held prisoner in Iraq, who told him the use of torture by American forces helped to fuel the insurgency.

“What is the moral superiority of the United States of America if we torture prisoners?” Mr. McCain said shortly before the election. Mr. Obama vowed to shut down the prison during his first year in office, calling it a legal and moral abomination.

As a former editorial writer, I want to start with an observation about editorial-writer tradecraft: the three paragraphs that lead an editorial should, in an ideal world, have some relation to the argument the editorial makes.

These three paragraphs, however, get orphaned mighty fast. McCain's name disappears completely from the editorial after this. Nor does the writer ever explain why it matters that the GOP standard bearer back then agreed with the Democratic standard bearer.

If the point is that there used to be consensus on the matter of closing Guantanamo, the editorial is incorrect. The body of Republican opinion in Congress and in the body politic never favored closing Guantanamo. (McCain was an outlier in his party on that issue, as on many others.) If the point is that Congress is somehow honor-bound by the position a GOP politician took eight years ago, well, that's just not how Congress works. If the point is that McCain was right, well, that is an ipse dixit of the sort that defines the New York Times's editorial coverage of Guantanamo: Say it three times and it's true; say it three hundred times and it's really, really true.

Paragraph Four begins the editorial's post-McCain Era:

As Mr. Obama’s administration draws to a close, there is less and less hope that the president will find a way to fulfill his promise.

This is a true statement. The Times then attempts to explain why that true statements represents a lamentable state of affairs:

The failure to close Guantánamo, where 80 detainees remain, is a shameful stain on Congress, which has hindered efforts to release prisoners and barred the Pentagon from moving those remaining to prisons in the United States. The prison has undermined America’s standing as a champion of human rights and set a deplorable example for other governments inclined to violate international human rights law. Its familiar orange jumpsuits have been made part of the terrorists’ propaganda, most recently by Islamic State fighters in photos and videos that show the execution of hostages.

There's a lot packed into this paragraph; let's unpack it a bit.

A "shameful stain"? As readers of this site know, I certainly don't favor Congress's approach to Guantanamo, but I don't think refusal to close Guantanamo is especially shameful either. Congress and the administration are not fighting over the status of detainees—whether any given detainee is going to be held or not held or whether that detainee, if he is held, will be held under the laws of war or under criminal authorities. They are fighting about the location of detention for those detainees the administration continues to hold under the laws of war. While I have no objection to closing Guantanamo and holding those people domestically, I can't see a "shameful stain" in leaving them where they are either.

Moreover, if "America's standing as a champion of human rights" has been "undermined," it is not by Guantanamo but by the detention policies pursued there. And the administration does not propose to pursue any other policies anywhere else. If the policies at Guantanamo have really "set a deplorable example for other governments inclined to violate international human rights law," will moving those policies to some facility stateside do anything to change that example? Would the New York Times let other deporable violations of human rights slide if the perpetrator countries merely shifted the facilities at which they take place?

Either there's a problem with what's taking place at Guantanamo, in which case the problem is the activity, not the facility, or there is not a problem, in which case switching facilities is merely a cosmetic and financial move, not one of principle or stain removal.

As to whether the "familiar orange jumpsuits" really show that Guantanamo has become a major recruiting tool of Al Qaeda and ISIS, I refer you to this excellent piece by Cody Poplin and Sebastian Brady, which reviews the propaganda in detail and concludes:

Guantanamo shows up repeatedly in jihadist propaganda. But it has grown far less salient over the last few years, playing a much bigger role in the words of Al Qaeda and AQAP a few years ago than it does now—and playing a far lesser role in the propaganda of ISIS than it does in that of older terrorist groups. What’s more, Guantanamo has never played a big role in any terrorist group’s propaganda compared to the issues that really animate those groups. So while it’s easy to find examples of terrorist leaders mentioning and denouncing Guantanamo, these were never the major themes of jihadi propaganda but were, at most, supporting arguments.

Indeed, other issues and grievances seemingly receive much more airtime and emphasis than the detention camp does; and Guantanamo, when mentioned, is often lumped in with other controversial facilities—like Bagram and Abu Ghraib. Detention and abuse of suspected terrorists by the United States, in other words, is a readily discernable motif. But the contemporary propaganda narrative seems to treat that motif as but one category of offenses in a long chain of western transgressions against the Muslim world.

Accordingly, it is hardly clear that Guantanamo’s closure would matter much, so far as concerns the contents of jihadist propaganda.

But never mind all that, because the "stain" of Guantanamo doesn't turn out to be the point of this editorial either. After raising McCain and dropping McCain, the editorial now also drops any argument for closing Guantanamo and pivots to, of all things, cooperation with a UN special rapporteur on torture, of course:

There is a modest step still available to Mr. Obama to demonstrate to the world that he is willing to acknowledge what has taken place at Guantánamo. The United Nations special rapporteur who examines issues of torture has sought access to the detainees for years, seeking to document their treatment while in custody. The government has refused repeated requests since 2004, with no good reason.

“I want to believe that the use of torture by the United States is a dark chapter that has ended,” Juan Méndez, the special rapporteur, said in an interview. “But I can’t be certain of that until we see a change in policy and verify that the United States is meeting all its international obligations.”

Now hang on there, pardner! I thought we were talking about jihadi propaganda, stains on our national honor, and location of detention.

Whiplash aside, the logic here makes no sense. Is the Times suggesting that if Guantanamo were closed and the detainees moved to facilities in the mainland, that suddenly, there would be access for Mr. Méndez and that conditions of confinement would suddenly change for the better? If so, the editorial is almost surely incorrect. The policies under which detention takes place, after all, and the location of implementation of those policies, as I noted before, are independent policy judgments.

But never mind that. It's time to hear from long-time diplomat Thomas Pickering about the evils of force-feeding:

The defense team of Ammar al-Baluchi, one of the detainees at Guantánamo who is being tried in connection with the 9/11 attacks, filed a motion in May asking the military commission to allow him to meet with Mr. Méndez. Thomas Pickering, a veteran diplomat who has served as ambassador to Russia, India and the United Nations in Republican and Democratic administrations, has filed a memorandum supporting this request. Mr. Pickering wrote that recent reports of “heavy-handed and even brutal force-feedings, indifferent medical care, unacceptably cold stainless steel cells, indefinite solitary confinement” at Guantánamo may constitute violations of the Geneva Conventions and the Convention Against Torture. The United States is a signatory of both.

“Guantánamo is currently used by our enemies as a symbol of lawlessness that grossly undermines U.S. national security,” Mr. Pickering wrote. “If the public reports about current abusive conditions are false, then I believe that the United States has much to gain by allowing” Mr. Méndez access.

Somehow, we've gone from what John McCain believed in 2008 about the preferred location for detention policy to what a U.N. bureaucrat supported by a former U.S. diplomat should get to do today to investigate force-feedings and solitary confinement that are in no way creatures of any specific detention facility.

But we're not done. The Times editorial has one more topic shift up its sleeve:

Mr. Obama’s pledge to close the prison was doomed by Republican opposition. But it is not too late for him to allow independent human rights monitors to create a fuller historical record of the conduct of the American government after 9/11 (emphasis added).


First I thought we were talking about detention facilities. Then I thought we were talking about detainee treatment and torture. Suddenly, in the last sentence, it turns out we're talking about something else entirely: the creation of a historical record by a UN special rapporteur.

I can't really tell what this editorial is about. But no part of me believes that the reasonable historical record about "the conduct of the American government after 9/11" is going to be written by the U.N.

I have no objection to closing Guantanamo. But this is a face-palmingly bad argument that will convince nobody who has not already bathed in, let alone drank, the Kool-Aid.