Excellent summary of GTMO myths . . . and a classic case of the “false equivalence fallacy”

A while back I wrote here about how remarkably successful President Obama’s efforts have been to fundamentally transform, to the point of elimination, the U.S. practice of longterm military detention in our armed conflicts with nonstate terrorist organizations. That multi-faceted transformation has, alas, been largely obscured by the one piece of the puzzle that I called “insoluble” — namely, the legacy problem of how to deal with the final three- to five-dozen detainees at Guantánamo. I also wrote in a companion post that, at the very least, and for compelling reasons, those final 30-60 detainees should be transferred to a facility in the United States, and the GTMO facility should be closed — something that can’t be done as long as statutory limitations remain in place. I also argued that the political campaign campaign against the relocation “is built entirely on cynical fear-mongering” and that there’s no basis in fact for concluding that any “genuine, substantive harm that might realistically be caused by relocation.”

In the New York Times today, Charlie Savage and Scott Shane do an excellent job collecting and refuting many of the myths that opponents of the GTMO relocation are constantly invoking, including the following:

— that “only the worst of the worst are left” at GTMO [Savage and Shane explain that “dozens of low-level detainees were approved for transfer years ago and stranded for geopolitical reasons,” and that many of the remaining detainees are there only because they are Yemeni, not because they have been determined to be especially dangerous];

— that “recidivism” data show that one of every three GTMO detainees who are transferred overseas will go on to engage in terrorist or insurgent activity [S&S explain that the one-in-three figure comes from confirmed and suspected problems among the 532 men who were transferred in the Bush era — an effort that included bulk repatriations of Saudis and Afghans — and that “[t]he Obama administration has used a far more calibrated and individualized review process in deciding whom to release and where to send them,” with far lower rates of subsequent hostilities];

— that Congressional Republicans “have for years baselessly accused [the President] of having no plan” for closing GTMO [S&S explain that the basic ingredients of the President’s current plan have been in place, and well-understood, since early in his first term];

— that “the would-be Christmas bomber had stopped talking because he was read the Miranda warning and given a defense lawyer, showing that F.B.I.-style interrogations did not work for terrorists” [whereas in fact “he had stopped talking before he was read the warning, and the F.B.I.’s methods, including enlisting the help of his family, were successful: In just a few weeks, the committed zealot started cooperating and provided a wealth of intelligence”];

— that the Ghailani trial “showed civilian courts were too weak for terrorists” [S&S point out that Ghailani was convicted and sentenced to life in prison and that “Federal civilian prosecutors have been ruthlessly effective, winning severe sentences in one terrorism case after another”];

— that “Guantánamo’s military commissions offer tough justice” and are a “far stronger option” than Article III trials [S&S explain that “the reverse appears to be true,” and that commissions have “been largely dysfunctional,” resulting in only a handful of convictions with brief sentences]; and

— that Ibrahim al-Qosi’s appearance in an AQAP propaganda video is “an example of the folly of the administration’s policy of transferring lower-level detainees” [S&S explain that Qosi was released because of the military commissions system].

More broadly, Savage and Shane show that the opposition to closing GTMO is, and since 2010 has been, purely a function of partisan political considerations, without regard to the merits of any substantive arguments.

Yet, despite all of its considerable virtues, the Savage/Shane story has a very strange and misleading lede:

Even by the standards of an epically polarized Washington, the political talk about President Obama’s effort to close the Guantánamo Bay prison is starkly divorced from facts. On both sides of the debate, many claims collapse under scrutiny.

As noted above, Savage and Shane thoroughly demonstrate that “the political talk about President Obama’s effort to close the Guantánamo Bay prison is starkly divorced from facts” and that “many claims collapse under scrutiny.” But their story does nothing to show that these pathologies infect “both sides of the debate.” This is the only thing they write about any alleged weakness in the President’s side of the debate:

[A] key argument Mr. Obama makes for shuttering the prison in Cuba — that its continued operation is contrary to “our values” — crumbles upon examination, too. His plan for closing it would not eliminate the main human rights complaints, because the United States would still be holding several dozen prisoners in perpetual detention without trial and force-feeding those who go on a hunger strike. It would just do that in a prison on American soil.

It is true, of course, that under the President’s plan, the United States would still be holding several dozen prisoners in perpetual detention without trial (and, presumably, that DoD would continue to force-feed at least some detainees if they go on a hunger strike). But of course the President does not deny this. Nor does he think, or argue, that such indefinite detention is a good thing — to the contrary, as I tried to explain in my original post, that’s why he has made such comprehensive and successful efforts to end the practice in every other respect, and in every context apart from the final three- to five-dozen GTMO detainees. And he’d end the practice for those detainees, too, if there were an obvious way to do so.

What about the President’s claim that continuing the GTMO operation is “contrary to our values”? Savage and Shane’s account does not call that claim into question at all, let alone make it “crumble.” In a recent veto statement, the President also asserted that “the continued operation of this facility weakens our national security by [i] draining resources, [ii] damaging our relationships with key allies and partners, and [iii] emboldening violent extremists.” Savage and Shane do not suggest that these claims are mistaken, let alone show that they crumble upon examination; nor do they try to show that moving the final few dozen detainees to the United States would not diminish each of these three harmful costs of keeping GTMO open. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).