It has become clear in the past week that, in political terms, the Bush administration has made Guantánamo extremely difficult to close. How do you deal with people – some innocent, some guilty, some dangerous, some not – who were held or interrogated under the relatively permissive legal rules of the Bush years once President Obama’s stricter rules are put in their place?
Terrorism is, in the end, both a serious violent crime and a tactic favored by many who see themselves as fighters in a transnational insurgency. To truly close Guantánamo, we will need to learn to accept the risks associated with combating sustained and dangerous criminal activity, whether through our criminal justice system or through the laws of military justice and armed conflict which regulate our ongoing military actions around the world. Those include the risk that some released from custody will go on to commit violent crimes or rejoin insurgent or terrorist groups.
Guantánamo is far more important as a symbol of American power, and abuse of power, than as a detention center. President Obama sent a powerful signal about his approach to American power and image by setting a firm target to close Guantánamo and secret CIA detention centers.
At the same time, he changed the rules governing people who are interrogated as suspected terrorists to conform with our longstanding military and police practices. By suspending the Guantánamo military tribunals, he also made it possible to bring these people into the more routine legal framework for either normal military operations, on the one hand, or normal criminal investigations and prosecutions, on the other.
As a detention center, Guantánamo is often depicted as a “legal black hole.” But, like the CIA’s secret prisons, it has always been an intensely regulated place. It is just that under the Bush administration, lawyers drafted rules and legal opinions permitting harsh interrogation and authorizing military tribunals very different from those long part of our military justice system.
As those rules change, some of those detained will be considered innocent and released. Others will be tried and, if convicted, serve sentences in our military or civilian prison system.
There may be prisoners whom we suspect were once seriously dangerous or who have become radicalized through their detention whom it will be difficult to try precisely because the legal regime has changed. Indeed, it may be impossible to try many held under rules which permitted interrogation techniques this administration is determined to treat as international law has long treated them – as impermissible torture. Much of the evidence which justified seizing and holding these detainees under the old rules will be hard to use in a real trial in our normal military or civilian justice systems. The temptation to reinstitute some new special process or tribunal outside our military and criminal justice system will be strong.
Moreover, we know that prisons have been the incubators for insurgents, terrorists – even freedom fighters – in many places. Although some of the prisoners may be broken or happy simply to return home in peace, others may have come in dangerous or been radicalized by their experience. This is one reason the administration is looking to detainees’ home countries for help. It may be possible to repatriate a number of those held if their own government will take responsibility for monitoring their transition to a normal life.
It is no doubt politically difficult to release Guantánamo detainees whom we cannot try and convict. But we must learn to accept the danger that some of those released will seek to commit further crimes. The release of people likely to commit violent crimes – even as insurgents or guerilla fighters – is far more routine than we imagine.
According to federal statistics, U.S. prisons and jails hold approximately 2.3 million inmates, including about 700,000 in state prisons serving sentences for violent offenses such as murder, rape, and robbery. In 2007, our criminal justice system released 725,402 prisoners out of the approximate 1.6 million serving prison sentences. Unfortunately, we have come to expect rather significant rates of recidivism. Within three years, about two thirds of those prisoners will be rearrested. Half will be re-convicted of a new crime and a quarter will be re-sentenced to prison.
In the military management of insurgency, many are rounded up by our military forces in Iraq or Afghanistan and released, even when our soldiers know that some have been and will continue to be potential insurgents. Some call it “catch and release,” but as a practical matter, it is a routine part of counter-insurgency operations.
From time to time, politicians have sensationalized the later crimes of those released from our criminal justice system – remember how Willie Horton’s release and subsequent crimes were used to attack Michael Dukakis.
Last week, President Obama asked us to “set aside childish things” in our politics and forswear the false choice between “our safety and our ideals.” If we are not willing to accept some risk of recidivism by those released from our penal and military detention systems, we will have failed to meet his challenge. It will have proven easier to close Guantánamo than to end the detention of those unjustly held there for years. People neither tried nor released will remain in a legal limbo antithetical to our ideals – just somewhere else. If this happens, the Bush administration will truly have made Guantánamo impossible to close and we will simply have moved the stain of injustice closer to home.
Editor's Note: David Kennedy is author of the book Of War and Law. He is the David and Marianna Fisher University Professor of International Relations, University Professor of Law and Vice President for International Affairs at Brown University.
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