Let us begin with one obvious fact: the decision to establish detention camps at Guantanamo Bay has cost us much more than we have gained.
Firstly, our European allies are justifiably upset — not only have we effectively re-written international law, but we have re-written it in a flawed manner and with trade-offs that they would never have chosen for themselves. By ignoring the international process, the United States has hemorrhaged much of its soft power and thus reduced the effectiveness of its foreign policy.
Secondly, the battle over Guantanamo Bay has incurred significant actual costs on the United States. Forget the (not insignificant) costs of maintaining the camps and their associated trial system — we’ve taken legions of lawyers, some of the most highly trained and talented minds that our society has to offer, and thrown them at what amounts to a toy problem. There are a little over 200 detainees at Guantanamo Bay today. Had any of these detainees managed to waste as much human potential as the legal wrangling over Guantanamo has, we would have considered them master terrorists.
This is not a cost-effective counter-terrorism policy. It would be cheaper to let the detainees go and shoot the recidivists on a distant battlefield than to continue housing, feeding, clothing, and arguing over them in perpetuity.
Yost, in his defense of the status quo, and Yost, in his calls for reform, have argued for a third legal system to deal with this new stream of detainees. Their points are moot — devising a more accurate justice system for a stream of individuals as tiny as this is akin to using a hatchet to kill a fly. The more serious detainees can be labeled as prisoners of war without straining our legal framework too much, and the less serious detainees can either be tried in civilian court (if there is sufficient evidence) or let go. There is no need for the legal trickery that Guantanamo Bay — a site magically under U.S. control, but outside of U.S. jurisdiction — represents.
The current policy is intolerable — as flawed and as ill-defined as it is, it forms both a horribly expensive and ineffectual way of dealing with detainees, while at the same time acting as the perfect bogeyman for anti-American rhetoric. Moreover, reform of Guantanamo Bay and our detention policy is not enough. If anything, it is likely to compound the problem, casting more human potential into the abyss and continuing a policy that earns us brickbats abroad. Let someone else foot the bill for developing the next generation of detention law and procedure — the Europeans are willing to be the greater fool in this regard, and we should welcome them.
Even if reform were possible on the cheap — even if we could, as Yost claims, develop a clean and coherent legal system for the gray area that exists between martial and civilian courts without undermining our established law, the detention center itself cannot remain. It is too symbolic of past failings, too powerful a reminder of the legal disarray we cast ourselves into in the wake of 9/11. It has, from the beginning, existed outside the rule of law and in the shadow of foreign opinion.
Today we have reached a stalemate in detention policy — after more than nine years of intense debate, we find ourselves so spent by the issue that no one cares enough anymore to push for a conclusion. Let us take that as a sign: Guantanamo Bay and the departure from our detention policy in 2001 were a mistake, and should be discontinued.