Debating Defenders of a Kafkaesque Justice System

I first heard from Benjamin Wittes of the Brookings Institution about two years ago, when he was conducting research into the cases of the prisoners held at Guantanamo, for a project entitled, "The Current Detainee Population of Guantanamo: An Empirical Study." Wittes got in touch because he had drawn on my analysis of 8,000 publicly available documents, which I used for my book The Guantanamo Files, and which I have been using ever since in my ongoing commentary on Guantanamo and my analyis of the stories of the men held there. However, while he was kind enough to acknowledge my work, his report demonstrated an unbridgeable chasm between his work and mine, as he essentially analyzed the government's supposed evidence as though it were all true, whereas I was much more skeptical.

I had subjected the government's claims to detailed scrutiny, based on a number of factors, including the fact that the majority of the men in Guantanamo were seized by the US military's Afghan and Pakistani allies, at a time when substantial bounty payments were widespread (PDF), and the fact that they had never been screened on capture, and subjected to Article 5 competent tribunals under the Geneva Conventions. Held close to the time and place of capture, these tribunals allowed non-uniformed prisoners to call witnesses, and were designed to separate soldiers from civilians caught up in the fog of war. They had been implemented successfully up to and including the first Gulf War in 1991, when around 1200 competent tribunals were held, and in three-quarters of the cases, those seized were freed, because they were able to demonstrate that they were civilians seized by mistake. At Guantanamo, I contend that the population could easily have been halved - from 779 to around 400 - had the competent tribunals not been dismissed by the Bush administration, which arrogantly asserted that it was, essentially, incapable of making mistakes - or didn't care that mistakes had been made on a colossal scale.

Where Wittes and I also fundamentally disagreed - and still do - was in our analysis of the government's supposed evidence. Whereas his analysis reads, essentially, like a summary of the case for the prosecution, I was aware that torture, coercion and bribery had been used to secure confessions, and I am gratified that this has been confirmed, many times over, during the last two years in the District Court in Washington D.C., where judges have been subjecting the supposed evidence to independent scrutiny, and have discovered the extent to which the prisoners themselves, or their fellow prisoners, were tortured or coerced into making false confessions.

The judges have also found evidence of the government's repeated reliance on informants, whose reliability has been questioned by the authorities themselves, which tallies with discoveries made by a military officer working on the Combatant Status Review Tribunals at Guantanamo in 2004-05 (the Bush administration's belated and mocking echo of the Article 5 competent tribunals), who discovered that one particular Yemeni prisoner had told lies about 60 of his fellow prisoners.

Some of the judges have also dismissed the government's attempts to create a "mosaic" of evidence through seemingly isolated pieces of information, and this echoes, in part, the revelations made by Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked on compiling the information used as evidence in the tribunals, and who asserted, in a statement submitted to the Supreme Court in 2007, that the gathering of materials for use in the tribunals was severely flawed, consisting of intelligence "of a generalized nature - often outdated, often 'generic,' rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals' status," that "what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence," and that the whole system was geared towards rubber-stamping the detainees' prior designation as "enemy combatants."

Since he completed his project, Wittes - sometimes with Jack Goldsmith, former Assistant Attorney General in the Justice Department's Office of Legal Counsel - has become an enthusiast for new legislation authorizing indefinite detention for prisoners seized in the "War on Terror," publishing numerous articles and papers, and also securing opportunities to disseminate these ideas through op-eds in the Washington Post.

They are entitled to their views, of course, but personally I find it chilling that "military detention without trial" is being proposed as "a means for incapacitating terrorists" that is preferable to federal court trials, as they stated in an op-ed for the Washington Post after the federal court trial of Ahmed Khalfan Ghailani, a former Guantanamo prisoner, and a former CIA "ghost prisoner," who was acquited on all but one charge two weeks ago, but neverthless faces a mandatory minimum of 20 years in prison.

Like Wittes and Goldsmith, I oppose the Military Commissions (brought back to life by Dick Cheney in November 2001, ruled illegal by the Supreme Court in June 2006 and revived twice by Congress, in the fall of 2006, and last year under President Obama) as a failed system that is unsuitable for trying terror suspects, as Lt. Col. David Frakt, former defense attorney for two Guantanamo prisoners, has explained in depth, but unlike them I believe that federal court trials are the correct venue for trying terror suspects, and that prisoners associated with the Taliban in Afghanistan (or even with what could be called the military wing of al-Qaeda, which supported the Taliban, but was essentially unconnected to the organizations's global terrorist operations) should have been held as prisoners of war rather than as "enemy combatants" in a prison that failed - and still fails - to distinguish between terrorists and soldiers.

I also believe that the legislation that currently exists and that is used by President Obama to justify the men's ongoing detention (the Authorization for Use of Military Force, passed by Congress the week before the 9/11 attacks) not only does not need replacing with the kind of alternative proposed by Wittes and Goldsmith, but should be scrapped, so that the United States can return to the pre-Bush world in which soldiers are prioners of war, and terrorists are criminals (as, in fact, has been acknowledged outside of Guantanamo and the CIA's secret prison network, with the successful prosecution, since 2001, of numerous terror suspects in federal court).

On Wednesday, in response to an article, "The Rule of Law in the US Hangs on Obama's Response to the Ghailani Trial," in which I savaged Republican critics of the Ghailani verdict, who are using it to advance their own unjustifiable belief that terrorists are "warriors," who should be tried by Military Commission at Guantanamo (despite the well-chronicled unsuitability of the Commissions as a venue for prosecuting terrorists), I also alluded to the work undertaken by Wittes and Goldsmith - and their colleague, law professor Robert Chesney - which, since September, has found a new outlet through their group blog, Lawfare.

In response, Benjamin Wittes published the article reproduced below, taking exception to some of the views I expressed, which prompted me to reply, to point out that he had mistaken part of my commentary, and to clarify other beliefs of mine which he had misinterpreted. Showing that dialogue is possible between those who hold differing views (unlike, for example, between those of us who oppose the existence of Guantanamo and the Republican lawmakers I referred to in my article about the Ghailani trial), Wittes then posted my reply, which I have cross-posted in response to his article.

I still regard his views with horror, as the very notion of passing legislation to endorse indefinite detention without trial, nine years after 9/11 and the beginning of the Bush adminstration's descent into lawlessness, stands in such fundamental opposition to everything I hold dear about the law. I am, however, grateful that Wittes published my response, and that we were able to demonstrate that differing points of view can be challenged through dialogue, rather than through the kind of polarized politics that has crippled the Obama administration in its dealings with national security. Regular readers will know that I do not regard the President as blameless in this, as he has persistently lacked the courage to stand up to his critics, but it nevertheless remains true that, on national security issues, and on dealing with terror suspects and Guantanamo, there are far too many voices raised on a regular basis that resemble nothing less than the darkest days of the Bush and Cheney years, which is the last place that a responsible America needs to find itself.

Cross-posted below is my exchange with Benjamin Wittes:

"Blind Vengeance and a Thorough Disdain for the Law" By Benjamin Wittes, Lawfare, November 25, 2010

This is how the always-entertaining British journalist, Andy Worthington describes critics of federal court trials, including - it seems - Jack and Bobby and me, which is kind of funny considering that we are not really critics of federal court trials at all. Worthington has written a great deal about Guantanamo over the years, and to give him his due, he did an incredible job of identifying the population at the facility. On certain empirical questions, I have relied on his work extensively and admire it. On normative matters, however, we are as far apart as can be. I regard him as absurdly credulous of the innocence of just about everyone at the base; he comes from the school of thought that believes that any detainee who says he's a sheep farmer or aid worker obviously is exactly that and that it's an affront to the rule of law that American forces might, well, not believe some of them. For his part, he describes me as follows:

Fortunately, for now, few critics have rallied behind a small group of other critics - Benjamin Wittes of the Brookings Institution, Jack Goldsmith, former Assistant Attorney General in the Justice Department's Office of Legal Counsel, and law professor Robert Chesney - who have taken another troubling unconstitutional line, suggesting that Congress should enact legislation to hold terror suspects indefinitely without even bothering to think about putting them on trial.

However, without decisive action in support of US law and the Constitution on the part of the government, it may be that the idea of avoiding trials altogether for terrorist suspects will gain in strength. In this, Wittes, Goldsmith and Chesney may find that they are encouraged, disturbingly, by the Obama administration itself, which has already endorsed indefinite detention without charge or trial for 48 of the remaining 174 prisoners in Guantanamo, on the advice of the interagency Guantanamo Review Task Force, which was established by President Obama last year to review the cases of the remaining prisoners.

Moreover, in its apparent paralysis regarding trials either in federal court or by Military Commission for 34 prisoners (who were recommended for trial by the Task Force), the Obama administration is close to finding that it has enshrined indefinite detention without charge or trial as official US policy unless it acts immediately to put other Guantanamo prisoners on trial in federal court - starting, I suggest, with Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks, whose federal court trial was announced by Eric Holder almost exactly a year ago.

If senior officials believe in the ability of federal courts to try terrorist suspects, they need to find the courage to say so, to say so boldly and with a courage that has been sadly lacking, and to follow through on their beliefs without caving in to criticism from opponents whose entire point of view is fueled by blind vengeance and a thorough disdain for the law.

A few points in response.

First, it is not quite fair to Bobby to group him in with Jack and me on this matter. His lust for blind vengeance and disdain for the law - though considerable, I'm sure - may not quite be on a par with ours. Specifically, I don't know him to have endorsed the idea of not bringing Guantanamo detainees to trial at all. Indeed, while Bobby certainly supports detention legislation, his work was pivotal in opening up for question the Bush administration's contention that federal courts were a wuss forum compared with military commissions. I don't know what Bobby thinks about whether and when, at this stage, trials are desirable for this group of people, and Worthington should not presume he does either. At any rate, as Woody Allen might put it, I happen to have Bobby Chesney right here, so he can speak for himself on the point.

Second, I won't argue with Worthington about whether my views on detention are "troubling" or not, but there is simply nothing unconstitutional about military detention. To be sure, it could be done in an unconstitutional fashion. But the core premise that some non-criminal detention of war-on-terror suspects is available to the executive is not at this point even constitutionally controversial, let alone in significant doubt. At least, it's not controversial among the justices of the Supreme Court, the Congress of the United States, or the presidency of the United States - whether the presidency is held in Republican or Democratic hands. There are questions, of course, about the permissible legal boundaries of detention, questions that we bat around on Lawfare every day. But it just won't do any more for the Left to dismiss detention per se as a lawless or unconstitutional option. The last time I checked, the Constitution doesn't vest in British journalists the authority to interpret its meaning, and the officials in whom it does vest interpretive power do not share Worthington's view.

Finally, there is an important point of agreement here: I wholly share Worthington's frustration with the administration's paralysis. I will support and defend just about any lawful disposition of these cases. If the administration decides to try people in federal court, I will defend that decision against the inevitable conservative attacks. If it decides to try people in military commissions, I will defend that decision against the inevitable attacks from, among other people, Worthington. If it affirmatively decides not to bring people to trial - the option that I tend to favor - I will defend that against their cries of lawlessness. I have suggested that the administration might thread the needle of federal courts vs. military commissions by using both forums in the September 11 case. And I am open to the creation of alternative trial venues if that will help too. The one approach I think is utterly indefensible is hand-wringing passivity - precisely what the administration has been doing for the last year. It's just terrible leadership; Worthington is correct that it displays weakness to domestic critics, but the more important point is that it displays weakness and uncertainty to the enemy. At some point, and that point was long ago, one needs to make a decision, articulate it, stand by it, and implement it.

Andy Worthington Responds By Benjamin Wittes, Lawfare, November 25, 2010

I received the following note from Andy Worthington in response to my earlier post about his article. I appreciate very much his clarifications, which read in relevant part:

My intention was not to describe you and Jack and Robert as "fueled by blind vengeance and a thorough disdain for the law" - and I apologize if that was unclear. I thought it was clear that I was referring back to the Republican lawmakers and their ideologically-driven disdain for federal court trials and for the absolute prohibition on the use of torture, and their mistaken enthusiasm for Military Commissions.

I also would like to clarify my position regarding the prisoners at Guantanamo, which also relates to your views on indefinite detention. You may, if you wish, describe me as "absurdly credulous of the innocence of just about everyone at the base," but in fact I have never stated any such thing. I believe that around three dozen of the prisoners - maybe a little more, maybe a little less - have anything in their case histories to indicate that they had any involvement with terrorism, and that, of the rest, roughly half were innocent men, seized by mistake, or through the opportunism that develops in one's allies when large bounty payments are offered for "al-Qaeda and Taliban suspects," and the other half were foot soldiers for the Taliban.

And as you also know, I'm sure, my problem with the detention policy is that I believe the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which, with a ruling by the Supreme Court in 2004, is used to justify the prisoners' detention at Guantanamo, is an unacceptable alternative to the Geneva Conventions as a means of holding wartime prisoners until the end of hostilities. I also believe that those accused of terrorist activities should be tried in federal court, as they have been for many years both before and after the 9/11 attacks. What galls me, and will continue to gall me, is holding both soldiers and terror suspects indefinitely as "enemy combatants" - or, as they now are, "alien unprivileged enemy belligerents" - as though the Bush administration's creation of a new category of prisoner - one without any rights at all - was fundamentally correct.

As a result, I don't see the need for any new legislation, and, indeed, am deeply troubled by any proposal that would further undermine the Geneva Conventions and the success of the US courts in prosecuting terrorist suspects by refining the innovations introduced by the Bush administration, which showed a particular disdain for the strengths of domestic and international law, and for the robustness and importance of international treaties. Instead, I would like to see the AUMF repealed, wartime prisoners held according to the Geneva Conventions (and this applies to Bagram as well, and wartime detention in any future conflicts), and those accused of involvement in terrorist activities to be tried in federal court.