Joseph Margulies is a clinical professor of law at Northwestern University School of Law and associate director of the Roderick MacArthur Justice Center. He is the author of Guantanamo and the Abuse of Presidential Power.
WikiLeaks recently released a trove of secret risk assessments regarding nearly every prisoner who has ever been held at Guantanamo Bay. I have been continually involved in Guantanamo litigation longer than any lawyer in the world, having been counsel of record in Rasul v. Bush, the first case that went to the Supreme Court from Guantanamo. Over the years, I have defended a number of prisoners at the base. Yet, in the Kafkaesque way that these things work, I cannot comment on the WikiLeaks material because they remain classified. But, even if I could, I would write about something else, because, when it comes to Guantanamo, oddities like this are no longer what matters. Indeed, they've been replaced by base's symbolism in the national consciousness.
It is sometimes said that the 1960s have become a cultural litmus test. A person's mental image of that turbulent decade predicts a great deal about his or her position on many of the hot-button issues we face today. Those for whom the 1960s meant the Civil Rights Act, the Voting Rights Act, the end of Jim Crow, the narrowing of the chasm between rich and poor, and the wistful end of New Deal liberalism have a very different vision of the country than those for whom it meant urban riots, campus chaos, the assassination of two Kennedys and a King, dramatically rising crime rates, and the first welcome stirrings of modern conservatism. In this way, the decade was not simply ten years in the long march of a nation's history, but a rare moment when competing visions of national identity collided in the public square.
We are quickly reaching a similar point regarding the meaning of, and proper response to, the attacks of September 11. Increasingly stable narratives are taking shape. These narratives vie to claim both the "true" understanding of the past and the proper direction of the future. And, as these narratives compete, the iconic images of the post-September 11 world — Guantanamo, waterboarding, military commissions, rendition, and countless others — are converted from policies that are either good or bad (and choices that were either wise or foolish) to symbols that represent particular visions of national identity. It is this symbolic potency that Karl Rove had in mind when he told a BBC journalist in March 2010 that he was "proud" of waterboarding and the other "enhanced" interrogation techniques. He meant that he was proud the United States had set itself on this course, and that staying the course by adhering to these methods symbolized America's commitment to a particular vision of both the past and future.
So it was with the reaction to the WikiLeaks material. Readers discovered in the cache what they set out to find and haled the discovery as confirmation of their prior views. The New York Times, for instance, editorialized that the documents — which it says were received from a third party that obtained them from WikiLeaks — were "a chilling reminder of the legal and moral disaster that President George W. Bush created [at Guantanamo]. They describe the chaos, lawlessness and incompetence in his administration's system for deciding detainees' guilt or innocence and assessing whether they would be a threat if released." But, reviewing the same material, the National Review Online shrugged that "Wikileaks seems to be supporting Bush's war on terror more than it's causing any problems for the former administration."
This shift from counter-terror policies to symbols of national identity is momentous and under-appreciated. As with our understanding of the 1960s, the competing visions of September 11 have produced hardening social narratives. These narratives explain the meaning and complexity of contemporary events, at least to the satisfaction of those who share the vision. But, to do so, the narratives must jealously insist upon an idiosyncratic approach to facts. Those that support the narrative are welcomed and assimilated, making the narrative stronger, and those that do not are ignored or dismissed. In time, as this creative use of evidence repeats itself, the narrative matures into myth, which misleads not so much by the falsehood it contains as by the truth it leaves out. In the end, for example, we are left with the myth of the 1960s as the golden years of the Great Society versus the myth of the decade as the moment when conservatism rescued the country from ruin. Or, in the post-September 11 context, the myth of a strong America attacked because of her values versus the myth of an American empire out of control.
I see several dangers in this trend. First, it makes it almost impossible for new facts to influence the debate in a rational way. The narratives pounce on each new development like a fishing party on a whale, carving it into pieces, using what parts it can, and throwing the rest overboard. This was clear from the commentary surrounding the WikiLeaks release. Even though the Obama administration cautioned that the assessments were outdated and "may or may not represent the current view of a given detainee," this caution went almost entirely unheeded, as different commentators seized on different pieces of information to validate their preconceived view.
Second, a transformation like the one taking place signals the end of rational discussion. When an issue achieves the symbolic potency that the post-September 11 debate has achieved — when policies become symbols — it means that intelligent debate is impossible. A change in policy — whether, for instance, prisoners should be tried in civilian or military courts; whether defendants should be read their Miranda warnings; whether interrogators should be allowed to use coercive techniques; whether Guantanamo should close — becomes a proxy for contrasting visions of national identity. To retreat, to compromise, to accept the legitimacy of another's view is to relinquish one's image of the nation. Thinking like this breeds sloganeering, demagoguery, and pettiness. It is not the stuff of sound decision-making, much to the detriment of the human beings whose lives are at stake and the nation whose security we ponder.
Third, national shouting leads to bad policy. When a position is pressed not because of its merits but because of its symbolic potency, it acquires political significance and prevails simply because it is politically impossible to resist it. The accommodation that must take place in order for government to function starts with certain issues as sacrosanct, and compromise must be found elsewhere. Policies endure not because they should, but because they must. This heralds the end of politics and the triumph of ideology. When actors in the public square cannot even view known facts in the same way, or willingly ignore empirical evidence simply because it is inconvenient, the give and take of political life cannot survive. And so it is, for instance, that Guantanamo remains open not because anyone in the intelligence world thinks it is a good idea, and not because it serves our national interests, but because it is politically impossible to close.
Finally, there is the level at which I have been engaged with this debate most personally. I have been to the base many times. I have tried to explain to my clients that they are no longer people whose alleged misdeeds will be judged individually, but rather, a collective symbol of American national identity. In a country that prizes individualism above all else, I have tried to explain that their individualism has been lost in the pot-clanging and drum-banging that takes place in this country when national identity is at stake. They do not seem to understand.