Detention and Denial: The Case for Candor After Guantanamo.

• Author: Pearlstein, Deborah N.
• Position: Book review

DETENTION AND DENIAL: THE CASE FOR CANDOR AFTER GUANTANAMO. By Benjamin Wines. Washington, D.C.: Brookings Institution Press. 2011. Pp. x, 160. $22.95.

INTRODUCTION

Since the United States began detaining people in efforts it has characterized, with greater and lesser accuracy, as part of global counterterrorism operations, U.S. detention programs have spawned more than 200 different lawsuits producing 6 Supreme Court decisions, (1) 4 major pieces of legislation, (2) at least 7 executive orders across 2 presidential administrations, (3) more than 100 books, (4) 231 law review articles (counting only those with the word "Guantanamo" in the title), (5) dozens of reports by nongovernmental organizations, (6) and countless news and analysis articles from media outlets in and out of the mainstream. (7) For those in the academic and policy communities who have followed these debates in any detail, much of Benjamin Wittes's Detention and Denial (8) will sound familiar. You will recognize many of its arguments, recapitulated at times near verbatim, from Wittes's prior works. (9) You will understand why, despite its relatively recent publication date, events occurring since publication--in and out of the courts--have inevitably eclipsed elements of both its descriptive and prescriptive accounts. (10) At the same time, you will be perhaps surprised to discover that the greatest problem in U.S. detention policy in the past decade has been neither its legality nor its wisdom but rather--mammoth volumes of litigation, legislation, and literary attention notwithstanding--that "we pretend that we do not engage in detention" (p. 9).

Although one wishes regularly for some greater definition of precisely which "we" Wittes means, he is undoubtedly right that debates about U.S. detention policy in the past decade have been beset by a kind of irrationality unfortunately familiar in democratic discourse on matters of national security. Politicians, for example, unrealistically insist that any detention regime be foolproof, or stoke tears that having any terrorist suspect held on U.S. soil poses an unmanageable security risk (pp. 8-9). But Wittes's book neither sheds new light on the causes underlying such unfortunate features of democratic debate nor analyzes how one might better structure decisionmaking on such fraught questions of law and security. Indeed, his criticisms of the political process on these issues are followed paradoxically by a call for greater congressional engagement. (11) Instead, Detention and Denial is better taken as a version of Wittes's argument for why the current system of rules the United States has for detaining terrorist suspects fails substantively to meet our policy needs. (12)

In this respect, the book is of certain utility for the general audience at which Wittes aims. As discussed as it has been, the topic of how to detain terrorist suspects remains undeniably salient. While the number of detainees held in U.S. custody worldwide has clearly declined since its post-September 11 height, as Wittes notes (p. 6), litigation has continued over questions of who may be detained and under what circumstances, (13) and legislation regarding the Guantanamo detainees in particular has become a perennial feature of the congressional calendar. (14) Beyond the issue of what to do with the men the United States currently holds, there of course remains the possibility that the United States will in the future engage in operations--like foreign wars--that demand a detention program of some kind. What should we be doing now to avoid future mistakes?

Such questions alone make it worth understanding why the book's aspiration to make the case in favor of new legislated "preventive" detention authority remains unfulfilled. As noted in the examples that follow, Detention and Denial suffers in part from basic errors of persuasive argumentation: substitution of straw men for opposing arguments of greater force and meaning; reliance on assertions, without footnote or textual example, of key elements of his policy case that are both susceptible of empirical demonstration and deeply subject to dispute; and an inadequate account of the law, particularly international law, he otherwise aims to critique. A greater problem is the largely unexamined expectations of democratic governance that Wittes assumes. While targeting both political branches for their irrationality and cowardice in failing to address key questions of detention in a forthright manner, Wittes expresses the least hope in the capacities of the courts--the only branch, in the book's account, that has been compelled to provide answers in any degree of detail to many of the questions of detention long outstanding. Instead, Wittes writes in favor of replacing general legislation authorizing military detention, subject to executive and judicial interpretation, with more specific legislation authorizing detention, subject to the same process of post hoc challenge and interpretation. What feature of the interbranch process does Wittes believe will lead this path to produce a more rational policy than the current policy he condemns? The book offers no clear answer.

Loosely tracking the structure of the book itself, Part I of this Review briefly sets forth the current state of U.S. counterterrorism detention policy, contrasting the account Wittes presents with an alternative analysis of the fault lines that remain on questions of detention law and policy. Part II then turns to Wittes's policy prescriptions, focusing in particular on his assessment of the costs of retaining the status quo as a way forward. Part III finally examines the assumptions of institutional competence that underlie Wittes's insistence upon legislative rather than judicial resolution of remaining detention dilemmas. With these assumptions exposed, this Review suggests that such structural expectations cannot bear the weight that Wittes asks of them.

1. ASSESSING THE CURRENT STATE OF AFFAIRS

   TO understand why Wittes believes "we" are in a state of denial about the nature of and need for detention policy, it is necessary to know something of the evolution of that policy over the past decade. The United States began large-scale military detention operations (and a smaller-scale intelligence agency detention program) after the attacks of September 11, 2001. (15) The vast majority of those detained in this system in the years just after the attacks were captured in connection with hostilities in Afghanistan following the U.S. invasion in late 2001. Some of these detainees were seized by the United States or its allies; others were turned over to U.S. troops by local forces with a variety of motives. (16)

   Although the United States bad repeatedly engaged in wartime detention operations during its history, (17) and had long since incorporated into Army regulations the Geneva Conventions' relatively modest restrictions on such detentions, (18) President Bush determined in 2002 that neither Afghan Taliban nor al-Qaeda detainees would be afforded Geneva protections, and in particular that the armed forces of the Taliban government would not be entitled to the privileged status of prisoner of war ("POW"). (19) Among other consequences of this decision, administrative hearings to determine the status of captured individuals--hearings mandated by Article 5 of the Third Geneva Convention in the event of any doubt regarding a detainee's status, implemented through Army regulations, and conducted regularly in previous conflicts--were abandoned. (20) The United States quickly came to hold thousands of prisoners in Afghanistan, a number of whom it began off-loading to the U.S. Naval Base at Guantanamo Bay for detention and interrogation. The Guantanamo population itself was soon augmented by a handful of detainees seized in Europe, Africa, and Asia, far from the Afghan battlefield. (21) As later became apparent, the detainees' varied origins and the general absence of standardized assessments of their identity in the field made determining who exactly the United States had in its custody and why they were being held wholly unclear in a large number of cases. (22)

   Compounding the uncertainty arising from the legal and operational novelty of detention procedures was the broad scope of detention authority the administration sought to assert. The international law of armed conflict (also known as international humanitarian law--"IHL"--or the law of war) clearly contemplates military detentions in situations of war between states or occupation of one state by another. (23) Although less well-developed, IHL also has rules governing the conduct of armed conflicts between state and nonstate actors, a situation that had commonly arisen in civil wars and insurgencies pursued in the territory of a party to the Geneva Conventions. (24) After September 11, administration lawyers asserted that the United States was in an armed conflict that was regulated by the rules of neither of those models. Instead, they described a situation of global armed conflict between a state and several nonstate actors, not limited to any particular geographic territory. And it asserted the authority to detain suspected "enemy combatants" in that conflict as long as the United States considered itself involved in an armed conflict of this nature. (25) The Bush Administration defined the term "enemy combatant" variously depending on the context. (26) Broadly, the term seemed to contemplate not only armed fighters shooting at U.S. troops in Afghanistan but also associates or supporters of terrorist groups, as well as individuals suspected of participating in active terrorist plots, whether seized in Bangkok, Bosnia, or Chicago. (27) The administration contended that the president's power under Article II of the Constitution was the only affirmative font of authority needed to render such detentions lawful, that congressional authorization...