The status quo bias and counterterrorism detention.

Author:McNeal, Gregory S.
Position:Symposium: Preventive Detention

    Counterterrorism detention policy in the United States is a mess. Commentators on both sides of the political spectrum have decried the U.S. approach. Those on the left have criticized the arbitrary and unfair nature of U.S. policy; (1) they argue that detention policy has unfairly trampled on the rights of individuals, producing results that are inconsistent and, perhaps, counterproductive, especially in the eyes of U.S. allies and the Muslim world. Others have approached this question from a security perspective, decrying the granting of privileges to those who fail to follow the rules of civilized nations yet then demand the protection of those nation's rules upon capture. (2) Those critics argue that our detention policies have unnecessarily endangered American security and must be toughened. Regardless of which argument is correct, both sides seem to agree that the status quo is untenable. In light of the critiques, what accounts for the lack of reform? One way of understanding the dysfunction inherent in detention policy is by seeing detention policy as a fixed policy domain mired in the status quo. Policy advocates have created an information-induced equilibrium where the costs of reform exceed the benefits of the status quo. The status quo is characterized by (1) a hyper-political discourse about counterterrorism detention policy that has led to (2) the elevation of politics over policy and (3) questions about the legitimacy of counterterrorism detention. When these factors are coupled with uncertainty about what change might entail, the status quo becomes a powerful force, characterized by a lack of focused attention to issues, and an inability to justify change. In this Article, I will first analyze the policy discourse surrounding detention policy. Next, I will describe the current state of affairs in detention policy, describing the uncertainty in the system and the calls for reform. Finally, I will make the case for pessimism, arguing that reform is unlikely due to the polarized nature of the counterterrorism detention policy debate and the strength of the status quo.



      To understand the status quo in counterterrorism detention, one must first understand the hyper-political discourse that surrounds counterterrorism detention policies. This discourse will be a substantial challenge for advocates looking to reform the current system. It is instructive to consider some of the ways in which interest groups have sown doubt about the merits and costs of counterterrorism detention; this subpart will summarize some of the most common critiques of counterterrorism detention.

      One frequently used tactic used by critics of preventive detention was to delegitimize detention facilities such as Guantanamo, by depicting them as cage prisons. (3) In fact, human rights groups used the photos of "cages" used in Guantanamo as a tool to describe the Guantanamo detention facility as an inhumane place to detain people. I say the photos were used as a tool because those photos depicted temporary facilities that were closed shortly after the Guantanamo detention facility was opened. Donald Rumsfeld, during his tenure as Secretary of Defense noted that Camp X-Ray (the facility frequently featured in the cage critiques) was overgrown with six-foot-tall weeds, yet the imagery persisted, as did the myth of Guantanamo as a facility where men were caged as animals.4 With that said, the hyper political discourse surrounding detention policy is not limited to rights groups; Secretary Rumsfeld was just as guilty of committing this offense when he described the detainees in Guantanamo as the worst of the worst, an assertion that has been largely disproven. (5)

      Another frequent assertion made by advocates and scholars, without any real factual support is that Guantanamo and other detention facilities are a recruiting tool for al Qaeda. (6) This assertion is a key element in the campaign to delegitimize and sow doubt about the status quo. This is presumably part of an effort to undermine the chances that the status quo becomes a permanent legislatively fixed policy option (as opposed to its current ad hoe form which may eventually fall into desuetude). The assertions by legal scholars making these claims fall into three categories: (1) legal scholars that claim that general civil liberties violations (including the use of preventive detention) committed in counterterrorism operations implicitly aid terrorist recruitment; (2) legal scholars that specifically argue that Guantanamo functions as a recruiting tool for al Qaeda; and (3) legal scholars that only allude to the fact, but do not argue that counterterrorism detention serves as a recruiting tool.

      First, those who claim but decline to directly state that counterterrorism detention serves as a recruiting tool argue that general violations of civil liberties, similar to what they assert happened in Guantanamo (e.g., torture during preventive detention), can lead to terrorist recruitment. Those that make this claim say: (1) "torture produces more terrorists" because terrorist recruitment thrives on America's abandonment of human rights values; (7) (2) history shows that "Arab/Muslim prisons, particularly their torture chambers have served as incubators for generations of jihadis"; (8) (3) and al Qaeda recruits by playing on the image of an underdog or "demonizing enemy states as forceful"; (9) and (4) the photos of the human rights abuses of Abu Ghraib (10) likely spurred otherwise neutral individuals to feel motivated to "lead a life of terror" in retaliation for those abuses. (11) All of these arguments can be connected to the idea of America's counterterrorism policies generally and counterterrorism detention specifically (Guantanamo and Abu Ghraib) serving as a recruiting tool. These authors do not cite direct evidence of the problems associated with counterterrorism detention, yet nonetheless the allegations sow doubt about whether the status quo policies should be permanently memorialized in law.

      Second, there are various scholars who claim that Guantanamo (perhaps the most prominent example of U.S. detention policy) is specifically a recruiting tool, and thus bad policy. Those who make that claim say: (1) violent Muslim reaction to the Newsweek story about a Koran being flushed down the toilet point to evidence of terrorist recruitment; (12) (2) Guantanamo as an image of civil rights violations such as prolonged detention or torture serves as a terrorist recruiting tool because it incites Muslims worldwide to act against the U.S. in revenge; (13) (3) Guantanamo is highlighted in terrorist recruitment websites, which serves as evidence of the United States "losing the moral high ground" and "[generating] the resentment which is the key to building the next generation of terrorists"; (14) (4) Guantanamo detention functions as a greater tool for terrorist recruitment than detention in Afghanistan or Iraq because transferring members of the "insurgency is likely to spread grievances across geographic jurisdictions," (15) and therefore insurgents should be detained and prosecuted in the local area in which they were captured because it centralizes the grievance and limits the ability to link to the global insurgency; (16) and (5) Guantanamo is understood explicitly and implicitly as a terrorist recruiting tool by policy makers and the international community.

      For example, one article cites Dennis Blair, when he was nominee for Director of National Intelligence, testifying that Guantanamo is "a rallying cry for terrorist recruitment." (17) Another article references the U.N. General Assembly's adoption on September 20, 2006 of the United Nations Global Counter-Terrorism Strategy, which recognized "conditions conducive to the spread of terrorism" to include "dehumanization of victims of terrorism in all its forms and manifestations." (18) These direct assertions about counterterrorism detention as a recruiting tool are mirror images of the efforts by human rights groups to undermine the creation of a permanent preventive detention regime. While Guantanamo has been the focus of human rights groups for the past nine years, their focus is not just on the closure of Guantanamo but also an end to preventive detention. (19) What we have witnessed in their campaign against Guantanamo is a mirror image of the campaign they will mount against any changes that will make permanent a preventive detention regime. (20)

      The final example of status quo inducing partisan discourse in the form of scholars and other advocates sowing doubt about Guantanamo specifically and preventive detention more generally is the category of authors who tangentially suggest that Guantanamo and preventive detention serves as a recruiting tool. Again, these scholars raise the argument but offer little empirical support. Nonetheless, they are successful in sowing doubt about the costs associated with a preventive detention regime. For example, one article considered the circumstances under which members of the Muslim-American community would voluntarily cooperate with police efforts to combat terrorism; in the process of gathering respondents' evaluation of current foreign and national security policy issues, the study assumed that the Guantanamo detentions played a significant role in al Qaeda propaganda. (21) The author did not primarily argue that Guantanamo or preventive detention is a recruiting tool for al Qaeda; rather the author accepted the argument as a fact, something that appears to be common within the anti-preventive detention policy community. (22)

      Furthermore, many advocacy groups essentially claim: (1) Guantanamo symbolizes abuse of Muslim prisoners and serves to spur al Qaeda's terrorist recruitment in communities that identify with the victim; (23) and (2)...

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