Posted by Jonathan Adler:
More Rights at Gitmo, Fewer Elsewhere?
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243821936
[1]Jack Goldsmith observes that the expansion of legal rights for
Guantanamo detainees and restrictions on rendition have been offset by
other measures designed to compensate for the costs of the new
limitations.
A little-noticed consequence of elevating standards at Guantanamo
is that the government has sent very few terrorist suspects there
in recent years. Instead, it holds more terrorists -- without
charge or trial, without habeas rights, and with less public
scrutiny -- at Bagram Air Base in Afghanistan. Or it renders them
to countries where interrogation and incarceration standards are
often even lower. The cat-and-mouse game does not end there. As
detentions at Bagram and traditional renditions have come under
increasing legal and political scrutiny, the Bush and Obama
administrations have relied more on other tactics. They have
secured foreign intelligence services to do all the work --
capture, incarceration and interrogation -- for all but the
highest-level detainees. And they have increasingly employed
targeted killings, a tactic that eliminates the need to interrogate
or incarcerate terrorists but at the cost of killing or maiming
suspected terrorists and innocent civilians alike without notice or
due process.
As Goldmsith notes, this shift may have negative consequences for both
intelligence gathering and human rights � but it has PR benefits. As
Goldsmith concludes:
After nearly eight years without a follow-up attack, the public (or
at least an influential sliver) is growing doubtful about the
threat of terrorism and skeptical about using the lower-than-normal
standards of wartime justice. The government, however, sees the
terrorist threat every day and is under enormous pressure to keep
the country safe. When one of its approaches to terrorist
incapacitation becomes too costly legally or politically, it shifts
to others that raise fewer legal and political problems. This
doesn't increase our safety or help the terrorists. But it does
make us feel better about ourselves.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/05/29/AR2009052902989.html?hpid=opinionsbox1
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