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Adam Pearlman on the Guantanamo Quagmire

By Kenneth Anderson
Tuesday, September 6, 2016, 9:59 AM

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Adam Pearlman is a lawyer with the Department of Defense who, in his private capacity, has a new article posted to SSRN titled (27 Stanford Law and Public Policy Review 101 (2016)).  The article considers why, so many years on, the Guantanamo detentions continue to be such a point of legal and moral controversy. Pearlman's article is particularly useful (especially read in tandem with his 2015 Harvard National Security Journal article, linked in the Abstract below) in that it sets the controversies within a broad framework of US foreign policy, particularly the normative terms of that foreign policy, while drawing on Pearlman’s legal expertise to consider these issues within the context of detailed law, both domestic and international.  Coming as a change of presidential administration looms, "The Guantanamo Quagmire" is an excellent guide for framing the issues raised by Guantanamo detentions going forward - controversies, of course, that will not go magically away come January 2017.  

Abstract:

Accepting for argument’s sake the twin premises that sending Operation Enduring Freedom detainees to Guantanamo Bay (GTMO) was in line with the international and domestic law of detention as it then existed, and that detaining suspected terrorists at GTMO achieved its core purpose of removing threats from the battlefield, and further allowed for the collection of useful intelligence from the detainees, this article examines why the GTMO is considered by many to be a “lightning rod,” a “political football,” or even an “albatross.”

As I have previously written, the government’s ultimate inability to successfully defend its application of prior habeas precedents has had significant legal consequences, including operational law incentives to lethally target combatants, and the development of international guidelines to fill supposed “legal ambiguities” in the rules troops must apply when detaining enemy forces in international armed conflicts. (See Adam Pearlman, “Meaningful Review and Process Due: How Guantanamo Detention is Changing the Battlefield,” Harvard National Security Journal (2015), at .)

This new 2016 article further examines the relationships and differences between law, policy, and politics in the context of detainee-related operations at GTMO. Taking a broad view of foreign policy and international relations, it examines how related but nonetheless discrete issues (e.g., law of war detention at GTMO versus intelligence interrogation at black sites) have been conflated in ways that have long-term legal and policy consequences, and that the name “Guantanamo Bay” is thus a cue for controversies that are perhaps as often mythical as grounded in fact.

 Part I traces the evolution of American foreign policy and global leadership as driven by moral values. Part II examines two post-9/11 counterterrorism detention scandals often discussed in tandem with (if not entirely conflated with) GTMO — the Central Intelligence Agency’s (CIA) so-called rendition, detention, and interrogation (RDI) program, and the Abu Ghraib prisoner abuse scandal — that undercut the moral high ground and human rights focus around which successive presidential administrations conducted international relations. Part III analyzes the dynamics of modern communications and the influence of globalized, decentralized, and instant reporting of news on U.S. national security policymaking, particularly with respect to GTMO and detention-related issues. Part IV concludes by laying out the long-term consequences of the resulting dubious conventional wisdom that several aspects of U.S. detention policy violate international law, and asserts that a significant factor in GTMO’s supposed radioactivity has been self-imposed by failing adequately to articulate and defend legal and strategic decisions made early on, and subsequently adopting the human rights community’s talking points in high-level political rhetoric, which have made GTMO more politically toxic than necessary.  (PDF, 58 pp.)

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