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A Detention Debate in Black and White

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By Robert Chesney
Thursday, September 10, 2009

For nearly eight years the United States has struggled to develop sustainable, effective policies regarding the capture, detention, trial and disposition of individuals in the context of combat and counterterrorism. Unfortunately, these pressing matters have become mired in a polarized and misleading debate. And judging by the rancor that spilled forth recently with the release of information about CIA interrogations, this problem is likely to worsen when more details emerge regarding the Obama administration's long-term detention policy.

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The problem is twofold. First, the national dialogue has been dominated by a pair of dueling narratives that together reduce the space available for nuanced, practical solutions that may require compromise from both camps. On the one hand, critics of the government's policies promiscuously invoke the post-Sept. 11 version of the Imperial Presidency narrative, reflexively depicting security-oriented policies in terms of executive branch power aggrandizement (with de rigueur references to former vice president Dick Cheney; his chief of staff, David Addington; or Justice Department attorney John Yoo, if not all three). On the other hand, supporters of the government's policies just as carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.

Second, individual issues in the debate over detention policy are often framed in stark and incompatible terms. Take, for example, the Guantanamo detainees, who are portrayed in some quarters as innocent bystanders to the last man and in other quarters as the "worst of the worst." While both extremes are misleading, their influence is pervasive.

It is worth considering why this is so. For one thing, these arguments make darn good copy. They are vivid and provocative. They are easy to convey in sound bites, attack ads, blog entries and op-eds. They are advanced relentlessly by their advocates, becoming self-reinforcing particularly for those who confine their news consumption -- as an increasing number of people do -- to partisan sources. At both ends of the political spectrum, these overly simplified stories resonate with deeper themes of mistrust (for the left, it is distrust in the executive branch; for the right, it is distrust in, well, the left). They are easily contrasted with one another, thus feeding into a convenient but inaccurate zero-sum meta-narrative. Day by day, the public receives the message that detention policy -- not unlike issues associated with the Culture Wars -- involves a binary choice between black-and-white alternatives, with apocalyptic stakes. The net effect is to shrink the political space within which reasonable, sustainable policies might be crafted with bipartisan support.

This state of affairs is perpetuated by more than just the journalistic attractiveness of these narratives. They would not persist if they were not flogged so relentlessly by politicians and advocacy groups, both of which seem to have strong incentives to keep pounding these themes, come what may. There are few more reliable ways, after all, to rouse the base, generate donations and maintain prominence in the media than by, say, bashing the Democrats for alleged weakness on national security or criticizing Republicans for alleged abuses of executive power and civil liberties. One is unlikely to get such benefits by conceding the complexity of detention policy, admitting the merits of some (but not all) aspects of an opponent's position, or calling for compromise in order to generate a practical and sustainable policy. The two poles in this debate may not agree on much, but in this sense they do share a mutual interest in keeping the debate boiling. The result? Mutually assured disagreement -- a revised MAD doctrine for the post-Sept. 11 era.

None of this is to suggest that the path to consensus is clear or could easily be achieved, nor that we should not have rigorous debate. The path to sound and sustainable detention policy almost certainly will require compromises and a willingness to incur political risk at both ends of Pennsylvania Avenue; however, today's culture of distrust and polarization makes this far more difficult than it needs or ought to be.

When the detention debate returns to the fore, the quality of the discussion will speak volumes about the health of our political culture. Ultimately, the goal is to identify a mix of detention-related options that are lawful, sustainable and that best advance our strategic goals. This will require a realistic and sophisticated understanding of what each of the tools can offer, where their legal boundaries lie and how the calibration of one tool might affect the utility of another. As we strive to answer these questions, we must hope that everyone with a voice in these debates, especially the journalists who are best positioned to frame the issues, shun the spirit of polarization and politicization that has come to plague detention policy from both ends of the political spectrum.

The writer, a law professor at the University of Texas, served on President Obama's Detainee Policy Task Force this summer. His e-mail address is rchesney@law.utexas.edu.



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