Charlie Savage on Obama, GTMO and “Our Values”

Over on his blog, Charlie Savage has generously published a very thoughtful response to my post about his New York Times article, with Scott Shane, on the falsity of political claims about closing Guantánamo. In my post, I explained that 95% of the Savage/Shane story is worthy of great praise; as Charlie quite rightly describes it, the article is “devoted to explaining how numerous claims put forth by Obama’s Republican critics are demonstrably false.” It is remarkably successful, and powerful, in that respect.

I did, however, have one (and only one) complaint about the Savage/Shane article: its lede, which suggests a false equivalence. Savage and Shane write, in their opening paragraph, that “on both sides of the debate, many claims collapse under scrutiny.” Sure enough, in their story, many, many claims of the critics of the President’s plan to close GTMO do indeed collapse, under Savage and Shane’s careful scrutiny. However, I argued, Savage and Shane don’t show — they don’t even attempt to show — how any of the President’s claims about the value of closing GTMO collapse, let alone “many” of them.

Charlie’s new post is nominally designed as a response to my charge of false equivalence in the lede. Yet, once again, I’m in agreement with the vast majority of what Charlie writes. In particular, he acknowledges two important things: (i) his article with Scott Shane did, indeed, explain how numerous claims put forth by Obama’s Republican critics are demonstrably false; and (ii) almost all of the President’s claims about the value of closing GTMO are not false (or, at the very least, are not challenged in the Savage/Shane article). As for the latter, Savage writes that he and Shane “did not quarrel with” the three principal, “pragmatic claims Obama makes,” namely, that GTMO’s continued operation “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 don’t quarrel with a fourth Obama claim, either, one that is related both to two of the claims above (damaging relationships; emboldening extremists), and to the broader view of the President that GTMO is contrary to “our values” — namely, that (in Charlie’s words) GTMO’s “problematic past during the Bush years — when interrogators used torture and other abusive tactics there, when the U.S. government proclaimed it a law-free zone where courts had no jurisdiction and the Geneva Conventions did not apply — has left a negative lingering impression that, as long as that particular facility remains open, causes frictions with our allies and aids our enemies.”

Nor does Savage take issue with a fifth claim of the President, related to his insistence that the U.S. ought to be “a model of the rule of law”: The President hopes to try some of the remaining detainees in Article III courts, which “have proven to have an outstanding record of convicting some of the most hardened terrorists,” in contrast to military commissions, which are “very costly [and] have resulted in years of litigation without a resolution.” “Fifteen years after the worst terrorist attack in American history,” lamented the President, “we’re still having to defend the existence of a facility and a process where not a single verdict has been reached in those attacks — not a single one.” Savage and Shane agree with the President’s assessment of Article III trials and military commissions, and they do not dispute that the former can resume only if the GTMO restrictions are lifted.

Finally, Savage also agrees with the President on (or, in any event, he does not take issue with) a sixth point, i.e., that “maintain[ing] forever a group of individuals who have not been tried . . . is contrary to who we are, . . . is contrary to our interests, and it needs to stop.” That is to say, the President believes it was, and continues to be, a very damaging mistake for the U.S. to have placed individuals in longterm military detention with no endgame in sight, for years on end. That’s why, as I’ve explained and as Savage confirms, the President has virtually eliminated the practice. Savage: “Obviously Obama doesn’t like long-term law-of-war detention without trial and in a perfect world, he would prefer to end it. That’s why he’s refused to use it as a disposition option for newly captured terrorism suspects and has set up a process whereby it may eventually wither away under a successor presidency, in contrast to the Republican view that it should be used routinely for new captures.”

So far, so good: Charlie and I — and the President — appear to agree on virtually everything, including much of what Charlie writes in his post (whereas, by contrast, Savage and Shane do, indeed, show that the many claims of those who oppose the GTMO closing plan are false).

So where are the President’s “many claims” that “collapse under scrutiny,” as the New York Times lede promised? As far as I can tell, Savage’s critique of the President reduces to one claim — and, as it happens, it’s a claim the President has not made.

Because the President’s plan would continue the military detention of 30-60 detainees, Savage writes, “Obama cannot coherently suggest that his closure plan would bring an end to detention practices that are ‘contrary to our values’” (emphasis added).

Charlie is certainly right about that. The problem of the final few dozen detainees is virtually insoluble, as I’ve explained. (In his announcement of the closure plan, the President said specifically that “dealing with the current group of detainees . . . is a complex piece of business because of the manner in which they were originally apprehended and what happened.”) Therefore, if Obama were to insist, or even suggest, that his GTMO closure plan “would bring an end” to the practice of longterm military detention with no end in sight — a practice that he has described as “contrary to our values” — that claim wouldn’t be very defensible, or credible.

But the President has made no such claim. To the contrary. He’s no dummy. He would never say, or even “suggest,” that his GTMO closure plan would bring indefinite detention to an immediate and complete end, because, as the plan specifically details, the military would continue to hold, at least until the end of the armed conflict with al Qaeda, five dozen or fewer detainees. The President obviously hopes that number would continue to decrease, as more detainees were either cleared by a PRB and transferred, or prosecuted in Article III courts (something that can only occur if Congress lifts the restrictions on bringing the detainees to the U.S.). But the number will not be zero for the foreseeable future — and the President does not say, or suggest, otherwise. (Nor has the President claimed that moving the final few dozen detainees to the U.S. would eliminate all criticism of the continuing detention, especially from those who (contrary to the President, the Congress, and the Court) do not think that such detention is lawful in this sort of conflict. Again, he knows better than to promise or predict any such thing.)

Charlie and I can, I suppose, continue to quibble about whether Obama has made a claim about whether his GTMO closure plan would end a practice of longterm detention that is “contrary to our values.” But however we might resolve that discrete question, that still does not account for the lede’s promise to identify “many claims” of the President that would “collapse” under Savage and Shane’s scrutiny. In his blogpost, Charlie appears to confirm that there are not “many” such claims — perhaps not any. 

About the Author(s)

Marty Lederman

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