an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
An article in last week’s Wall Street Journal notes that Republicans in Congress are questioning the Obama administration’s decision to transfer some Guantánamo detainees to Europe. Fresh off their success in preventing any further transfers to Yemen, these members are now trying to "Yemenize" countries like Spain, Germany, and France, raising the specter that these countries—all of which are targets of Al Qaeda themselves—somehow lack the will or the ability to keep tabs on former detainees. According to the article, "Republicans cite an estimate from the Pentagon that some 20% of the detainees released under President Bush have returned to the fight. They say Mr. Obama should abandon the release policy in light of that figure."
Leave aside, for the moment, the flaws in the reporting of the Defense Department’s numbers (when the DoD’s numbers are read accurately, it appears that a much smaller percentage of released detainees—perhaps only 4%—have returned to terrorism). And leave aside the fact that these same members of Congress never uttered a peep when President Bush released hundreds of detainees from Guantánamo. The real story here is the lawmakers’ comfort with continuing to imprison a group of men indefinitely when prior experience suggests that most of them—historically, 80% or more—would pose no danger if released.
Remember that these detainees are not convicted criminals, whose sentences serve, in part, as punishment and deterrence to others. Under the law of war, the sole justification for holding the Guantánamo detainees is to prevent their return to battle. In traditional wars between nations—as I’ve written previously—such return is a near certainty, as soldiers are bound by the laws of their countries to fight. The low 20% figure reported by DoD should thus cause Republican (and Democratic) lawmakers to question whether the law of war detention framework applies at all to the non-traditional war we’re now fighting—not to seek greater use of that framework.
There’s also the little matter of whether the detainees were ever combatants in the first place. There can no longer be any serious dispute that some of the individuals held at Guantánamo were erroneously detained. Indeed, it would be surprising if that were not the case, given the manner in which many detainees were apprehended: they were sold to allied forces for a bounty after the U.S. air-dropped leaflets over Afghanistan promising thousands of dollars to anyone who turned in a member of the Taliban or al-Qaeda. The courts have now granted more than two thirds of the Guantánamo habeas petitions that have come before them.
But Republican lawmakers are apparently uninterested in this detail. If 20% of released detainees supposedly returned to terrorism, then "Mr. Obama should abandon the release policy," period—regardless of whether that means continuing to detain some people who are not terrorists and never were. It is a stark reversal of the maxim, first penned by English jurist William Blackstone, that has characterized this country’s approach to justice for two and a half centuries: "Better that ten guilty persons escape than that one innocent suffer."
Of course, this principle generally finds expression in the context of the criminal justice system, not wartime detention (and some lawmakers’ commitment to this principle was thin to begin with). But here’s a thought experiment: suppose that Guantánamo’s innocent included American Christians hailing from places like Bismarck or Colorado Springs—victims of mistaken identity or bureaucratic error. (It’s far-fetched but not impossible, given the government’s claim that it can hold U.S. citizens apprehended in the U.S. as enemy combatants.) Would these same Republican lawmakers insist that the innocent be held along with the guilty, in order to protect the rest of us? Or is detaining the innocent an acceptable price to pay only when the innocent are comprised of grim-faced, bearded Muslims hailing from places like Afghanistan, Pakistan, or Yemen?
Liza Goitein is Senior Counsel, Liberty and National Security Project, The Brennan Center for Justice. You can reach her by e-mail at goiteine at exchange.law.nyu.edu Posted
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