Gabor Rona on Embracing Guantanamo

By Benjamin Wittes
Monday, January 24, 2011, 3:21 PM

Gabor Rona of Human Rights First sent me the following email this morning in response to my post from last week urging President Obama to make his peace with Guantanamo:

You've gotta be suffering from willing suspension of disbelief to think that "the big beef against Guantanamo these days is its reputation." By that, I guess you mean that the problem is what it was, not what it now is. What has significantly changed is detainee treatment. What has not changed is that many people there should not have been detained, including many who continue to be detained, even after exoneration in habeas proceedings.
 
This is something to embrace? Sounds to me exactly like what the US rightfully criticizes in other countries we think have a lot to learn about the rule of law.
 
I know that in the past you have also flirted with the idea that double standards are ok, that the US should somehow be exempt from principles and rules established in international law that the US and other countries have signed on to. This view would seem to be an integral element of your "embrace Gitmo" vision. I challenge you to "man up" and be explicit about it.

Gabor has, with an admirable economy of words, covered a lot of ground here. I want to respond to several of his themes independently.

First, when I said that "the big beef against Guantanamo these days is its reputation," I was not suspending disbelief in anything. I was just taking Guantanamo's opponents at their word. I was referring to the stated reason the administration seeks to close it. From the President on down, officials--when asked why Guantanamo needs to go--talk about it as a recruiting tool for the enemy. In other words, they site reputational and symbolic concerns, not functional or legal ones. As Obama recently put it: "[L]et me just step back and explain that the reason for wanting to close Guantanamo was because my number one priority is keeping the American people safe.  One of the most powerful tools we have to keep the American people safe is not providing al Qaeda and jihadists recruiting tools for fledgling terrorists. And Guantanamo is probably the number one recruitment tool that is used by these jihadist organizations” (emphasis added). Come to think of it, the reason Human Rights First says it wants to close Guantanamo is also reputational. "Guantánamo remains Al Qaeda’s top recruiting tool which makes America unsafe," the group declares.

Second, a great deal more has changed about Guantanamo than, as Gabor acknowledges, "detainee treatment"--though that clearly has changed. Recall the critique of Guantanamo in 2002 and 2003 even before allegations of abuse there had arisen. It was a "legal black hole," specifically selected for being outside of the jurisdiction of the U.S. courts. The government would not even identify the detainees or, initially, their countries of origin. The government would not commit to treating them in compliance with the Geneva Conventions. They could not meet with lawyers. They could not contest the basis for their detentions. None of this is true any more. Guantanamo is no longer a legal black hole. Habeas reaches every detainee at the site. Detainees have lawyers. The public knows who the detainees are. And nobody today disputes that the government must treat them in a fashion that complies with Common Article 3 of the Geneva Conventions. What has changed, in other words, is just about everything to which people objected about Guantanamo. And ironically, some of these things have not changed at other detention sites. So when I suggest bringing other long-term detainees to Guantanamo, I am suggesting giving them more process and rights than they currently have.

Third, Gabor is correct to point out that some people at Guantanamo were wrongly detained, but closing Guantanamo would do nothing to solve that problem. The question of whom one detains and where one detains that person are different questions, after all. While closing Guantanamo could conceivably have an impact on the government's authority to hang on to detainees who have won their habeas cases but whom it cannot repatriate or resettle, the government isn't going to bring those detainees to the United States even if it had an alternative site for detention. So whether Obama embraces Guantanamo or continues to insist that he will close it will not affect the liberty of a single detainee currently there. I fully agree with Gabor that it is a matter of honor and decency for the United States to free people it has wrongly locked up, but this has very little to do with closing Guantanamo.

Fourth, as Gabor notes, I have a functional attitude towards international law, and it does not especially trouble me that the United States might occasionally breach its international law obligations--provided that it is willing to take the consequences. But embracing Guantanamo is not an example of of this principle. Guantanamo is a detention site at which the United States fully accepts and implements its international law obligations. It gives detainees processes that are wildly in excess of those required by international law. And shutting the facility would not necessarily mean any greater compliance with any rules, international or domestic; it would mean only a change of location. Were I urging some unprincipled course on the President, I would be happy to--as Gabor puts it--"man up" and own it. But I'm not. I'm urging simply that if he is not going to close Guantanamo, he should stop contributing to the reputation that, he claims, is its major defect today and should acknowledge that, talked about differently, Guantanamo could represent precisely what he claims to want in a detention system.