Speaking of the non-existent/invented-by-me-in-a-moment-of-cheekiness campaign to return Jack Goldsmith to the Office of Legal Counsel, check out Goldsmith’s detentions-dilemma op-ed in the Washington Post. Befitting this blighted world, Goldsmith endeavors to find some pragmatic ways out of the terrorism detentions stalemate. Among his basic tradeoffs: keep Guantanamo open and lose the military commissions.
If the political choices facing civil-libertarian and the counterterrorism communities are frozen where they are, then on substantive grounds, there’s a case to be made that civil libertarians should embrace that deal. (Attackerlady may disagree, and I expect a vigorous domestic debate later…) What’s the big problem with Guantanamo: indefinite detentions; military commissions; torture. Torture is gone has been rolled back [see Jeff Kaye in comments], but the first two remain. Here’s what Goldsmith argues as an alternative:
[S]top using military commissions, which are a good idea in theory but have for nine years proved unworkable in practice. Military detention and civilian trials provide adequate legal bases for terrorist incapacitation.
So I guess what this means, if Guantanamo is to stay open, is to create the U.S. District Court for Guantanamo Bay. When I was at GTMO for Omar Khadr’s pre-trial hearing, the reporters and the officials openly discussed this possibility over beers as a hypothetical. There are some obvious logistical problems with such a proposal: it’s hard to get court officers and especially a jury to a Naval base on Cuba. But these are problems with the military commissions as well. On balance, perhaps it’s better to simply establish the civilian court, bite the bullet on the complications and work to overcome them, and use it to liquidate through trials the residual GTMO population. That would be a net positive for the rule of law.
Here’s Goldsmith’s substantive point on GTMO:
[G]ive up on closing the Guantanamo Bay facility. The administration has missed its one-year deadline. The symbolic benefits of closure have diminished significantly, because the substitute for detention without trial on the island is detention without trial inside the United States with little if any change in legal rights. The main reason to close the facility is to fulfill a first-week presidential pledge that now, under different circumstances, is too costly.
Really a fair critique! Here’s what drives me bonkers. Goldsmith is totally, totally right that the GTMO-North alternative makes the closure of Guantanamo “symbolic.” I made a similar point to a colleague at the Khadr trial. And then she said something that blew my mind: Yes, but symbols matter. What will it mean for al-Qaeda recruitment if GTMO stays open?
I resisted that point for as long as I possibly could. It seems so much like a cop-out. Symbolism should never trump substance! Thomson, with its indefinite detentions and military commissions, will just become the new symbol — and in the United States, no less! But I had to conclude my colleague was right. Symbols really are important. As journalists, it’s our responsibility to separate the symbols from the substance and to challenge both. But policies that lend themselves to misunderstanding will ultimately be untenable (see: the July 2011 “deadline” for “transition” in Afghanistan). I sympathize deeply with Goldsmith on this point — really, I do — but it’s worth acknowledging that the net costs to the U.S. for keeping Guantanamo open are significant, however much they stem from a symbol.
Update, 10:51 a.m.: Don’t miss Marcy’s rather different take on Goldsmith’s piece.