The Justice Department’s task force on what to do about Guantanamo and detention has said that nearly fifty of the 196 detainees at Guantanamo should be held indefinitely without trial, under the laws of war, on the grounds that they are too dangerous to release but unprosecutable. Stories are in the Washington Post and the NYT and elsewhere. According to Peter Finn’s front page WP account:
The task force’s findings represent the first time that the administration has clarified how many detainees it considers too dangerous to release but unprosecutable because officials fear trials could compromise intelligence-gathering and because detainees could challenge evidence obtained through coercion.
This is separate from the question of whether Guantanamo detainees should continue to be repatriated to Yemen, and the general question of former detainees returning to jihad. Human rights groups, the article noted, are unhappy with the recommendation. I agree with the ultimate recommendation but am not happy with the legal grounds on which it is offered. Overall, and without attempting to go into the details, I do not think the law of war framework is the right one – the US ought to move to a legislatively established terrorism regime that would be civilian in nature, have the possibility of both administrative detention in cases such as these, but also the ability to conduct trials under a different set of rules than those of regular US federal courts.
One of the principal reasons I favor this is something not often raised by the press, but which needs to be at the center of policy in this area. This national security regime needs to be limited to clear terrorism cases – unlike, say, the Patriot Act, in which following passage it was almost immediately invoked in entirely unrelated cases such as child pornography. But it also needs to extend to cover US citizens. It is clear that jihadist recruitment is extending to US citizens, and, as Jack Goldsmith says in a recent book chapter, in defining the universe of people subject to administrative detention, it “should extend to US citizens as well as aliens.” (This is in Benjamin Wittes’ new ed. volume, Legislating the War on Terror: An Agenda for Reform, at 83.)
This is a change of view from what I said in the immediate months following 9-11, when it was still possible to regard the war on terror as against external enemies. That is no longer the case, and it is hard to think of any examples of genuinely serious internal terrorism threats in which parliamentary democracies did not find that they had to respond with special terrorism legal regimes – partly in order to address the security threat, but partly as well in order that the special conditions of ideological or religious terrorism, with a set of motivations and non-deterrables not captured by ordinary criminal justice, not overcome the ordinary criminal justice system and define it down even for ordinary, non-terrorism criminality. Germany, Italy, Spain, France, Britain – the US has not gone down this path before, but then it has not had this kind of threat, either. I do not think the law of war framework works for many reasons, among which is that it is not the right mechanism for addressing US citizens who take up terrorist causes.
All of this goes to the quite astonishing admissions by the administration’s four senior counterterrorism officials in Congressional testimony that no consideration was given in the Christmas bombing attack to treating Abdulmutallab as anything other than a regular criminal suspect – not that it was considered and rejected, but that no one at the senior level was even consulted. Which is part of the reason why, once the Christmas bombing attack forced a bit of a wake-up from the Long Nap in which the US had not been attacked after 9-11, the law of war framework is not okay on a long term basis, neither is the assumption that the US can simply default to ordinary criminal process – and the assumption that none of this requires any real legislation, in my view, profoundly incorrect.
PS – from Peter Finn’s excellent article – this is, in my view, a particularly bad idea:
Some European officials, who would like to see Guantanamo Bay closed without instituting indefinite detention, are advocating the creation of an internationally funded rehabilitation center for terrorism suspects in Yemen and possibly Afghanistan. They say such a facility would gradually allow the transfer of all detainees from those countries back to their homelands, according to two sources familiar with the plan.
A majority of the detainees slated for prolonged detention are either Yemeni or Afghan, and European officials think the others could eventually be resettled under close supervision ….
“We are running out of options, and the administration needs to seriously consider this,” said Sarah E. Mendelson, a fellow at the Center for Strategic and International Studies and the author of a report on closing Guantanamo Bay. “There is lots of really good expertise on rehabilitation, and the administration needs to invest in it.”
Really good expertise on rehabilitation? Sarah Mendelson is very smart, but surely this is a touch out of date? Among assumptions that need to be revisited in all of this, the optimistic assumption about rehabilitation is one of the most important, whether in Saudi Arabia or Yemen. A more realistic assessment might be that, for the Americans, “rehabilitation” means either house arrest by the Saudis or, anyway, “out of (American) sight, out of (American) mind.” One might have thought that the accounts of former Guantanamo detainees in Al Qaeda in the Arabian Peninsula would have at least put this kind of naivete on hold.
But there is another way of looking at this, unfortunately – viz., that it is not naive but cynical. The human costs of repatriating detainees who go back to jihad are mostly going to be borne, not by Americans, but by populations in the soft, often urban, targets of south Asia. One of the moral factors that the human rights and civil liberties groups seem never to take into account is that the relentless focus on the question of whether particular detainees present risks to Americans leaves out of account the risks to other people, other places. They somehow do not seem to show up in the moral calculus, but it is those people who are most likely to pay the price for American moral absolutism.