David Cole has a new article on Guantanamo in the New York Review of Books. There is a great deal in David's article with which I disagree, both tonally and substantively. But his piece, as with a fair bit of his recent writing, also reflects a zone of consensus between reasonable people of Left, Right and Center that is actually somewhat broader than people often understand. I'd like to focus just for a moment on one aspect of the scope of that consensus.
David inveighs against Guantanamo's history, laments the failure to close it, and urges accountability for abuses there. But he also candidly acknowledges that closing Guantanamo will not and cannot mean freeing everyone there against whom prosecutors cannot bring charges:
[T]he categories of those who can be criminally tried and those who should be released are not exhaustive. There are likely to be prisoners who cannot be tried but may nonetheless be lawfully detained. Parties to armed conflict routinely capture and detain the enemy, and the law of war has long recognized that such detentions may last as long as the conflict does. Defining “the enemy” and the duration of the conflict are more difficult in a struggle with guerrilla forces that are fighting outside the authority of any state; but that hardly means that the US must forgo the tactic of detaining the enemy. Thus, even if all the abuse that has poisoned Guantánamo were acknowledged and rectified, some men would remain appropriately detained without trial—as prisoners of war in the ongoing armed conflict with al-Qaeda and the Taliban in Afghanistan.
Like Steve Vladeck and unlike some of the human rights groups, in other words, David acknowledges that there is a legitimate role for non-criminal detention in the current conflict. In some respects, that point of agreement--between everyone from David and Steve to people like Jack, Bobby and me to the Obama administration to the Bush administration to people on the hard right like David Rivkin--is far more important than what separates us. That is, in contrast to those who reject non-criminal detention in principle, we are all negotiating its terms. The argument that persists between us is an argument less over the fact of detention or the legitimacy of detention than over the source of authority for it, its substantive contours, and the role that Congress should play in writing its rules.
I don't mean in any way to minimize the importance of these issues; I wouldn't spend so much time writing about them if I did not think them enormously consequential. (At a recent panel event, David referred to my work on these subjects, if memory serves, as "thoughtful and dangerous"--so I'm pretty sure he feels the same way.) Still, it is worth emphasizing the areas on which we do not disagree. In both David's world and mine, the government will be detaining people outside of the criminal justice system for a long time to come.