12-13-2010By Gabor Rona
International Legal Director
Ben Wittes complains that we do not have an adequate “political vocabulary for discussing Gitmo recidivism.”
I’m not sure what that means, but Ben seems to think that we can’t strike the right balance on the liberty/security continuum until we all agree (with him?) on names for things he thinks have not yet been named, like the various shades of gray in what people did to get themselves detained.
This is a classic straw man claim in which Ben exaggerates and misrepresents the state of affairs in order to create space for his unique solution.
For example, he says that the “human rights community” (disclosure: as the International Legal Director at Human Rights First, I’m a card carrying member) “to its undying shame” is “relentlessly dishonest,” “crude” and “simple” in its world view which says that detention is “a human rights bad” while release is “a human rights good.”
Now, I’ve been pushing back for some time against what I consider to be Ben’s ill-conceived notions about how to fight terrorism, but this is new territory for him – a demonstrably false characterization of what the “human rights community” stands for.
Perhaps Ben was absent the day (and the many subsequent days) that virtually every human rights organization acknowledged the proper place of detention in armed conflict and asserted the necessity to detain and hold accountable those who traffic in the injury and death of civilians, so long as grounds and procedures are founded in law and meet international standards. See, for example, statements acknowledging the propriety of detention in armed conflict and/or the need to hold terrorists accountable here and here from Human Rights Watch, here from ACLU, here from Center for Constitutional Rights, and here from Human Rights First.
If Ben was not absent on that day, the only other explanation I can think of for his vituperative disconnect is that he is incapable of distinguishing between “detention is bad” and “detention that fails to comport with the rule of law is bad.”
But what about the need to name the various shades of gray? Here, I think Ben almost makes a good point about detention. Almost, because he first exaggerates the problem and then fails to recognize the solution staring him in the face – a solution that human rights groups have been flogging for years.
The problem is that when it comes to detention, there are only two options: to detain indefinitely or not to detain. Actually, that’s not quite true, because under the Geneva Conventions, a detainee who is not a member of the armed forces in a ‘country vs. country’ war should get a review every six months, in which his or her continued dangerousness is determined. That’s why Ben’s characterization of “the problem” is an exaggeration. The “vocabulary” for the various shades of gray is built into the periodic review process.
But even if there was no requirement of periodic reviews, here’s why Ben is jousting with a straw man of his own creation, rather than acknowledging the solution staring him in the face: it’s a small thing called the U.S. Code. This U.S. Code details a gazillion crimes triable in our federal courts. When it comes to terrorism, finding a crime upon which to convict is as easy as saying “material support” and “conspiracy.” Each crime carries a specified punishment from which judges do not stray absent articulable cause. And presto, there’s your shades of gray (or, “vocabulary,” as Ben likes to call it)!
We at Human Rights First have put a lot of time and energy into evaluating and reporting on the experience of federal courts in trying terrorism cases. See our reports here and here, concluding that the federal courts are well equipped to hold terrorists accountable with suitably severe punishments that amount to long-term, but not indefinite, detention. (Take that, you relentlessly dishonest human rights community!)
And one more thing. Ben’s clarion call for a rainbow of names to label what people do to merit detention so that we can then tailor detention solutions to suit does not seem to prevent him from blithely and approvingly tossing around the label “combatant” as a place-holder for “detainable.” This is an understandable rhetorical flourish, since combatants are ipso facto detainable, but Ben seems unconcerned with how that term is understood in the law of armed conflict, as opposed to the promiscuously overbroad way he, the U.S. Government and many members of Congress are determined to use the term.
Given the political landscape, asking for legislative and executive refinements of vocabulary to categorize varying degrees of detainability is simply asking for greater departures than already exist from the consensus of nations as to what international law permits.
“So what,” you say? “We don’ need no steehnkin’ international law!” Fine, but then don’t complain when our European allies, for whom human rights rules are enforceable in the European Court of Human Rights, decline to cooperate with us on intelligence sharing and the transfer of suspects for fear of being held complicit in our violation of the prohibition against arbitrary detention. And don’t complain when Al Qaeda joyously uses those departures from international norms as a recruitment booster. And don’t complain when repressive governments in other countries laugh off US entreaties to respect human rights. And don’t complain when all of that ‘bites us in the backside’ (as General Petreaus said) to undermine, rather than protect, our national security, because no amount of new vocabulary will solve that problem.