First caveats – I am not a fan of Guantanamo Bay. I really think it’s horrible that the prison over there exists and has been used as it has, and that horribleness is part of the source of the problem. However…
In the criminal law, things are not as simple as “There are no good reasons to think someone is a threat at all” versus “We have evidence enough to convict them.” There may be lots of good reasons to think someone is dangerous, while at the same time not enough admissible evidence to convict them of any crime. I can only speculate about what the standards of admissibility of evidence are for military tribunals or whatever sorts of courts end up being used for these people (law school was a long time ago and standard criminal procedure might not cover these situations). However, I imagine there are analogies to police screw ups in normal criminal cases – for example, evidence obtained without warrants where warrants were required, which demonstrates clearly that someone is guilty but cannot be used. I would not be surprised if there is at least some of this going on. I am not qualified to speculate what percentage of the prisoners are in this sort of situation, but I don’t see any reason to think it is 0.
In addition, there are likely to be prisoners who did nothing (that we can convict them of) before being locked up, but are now die hard enemies of the United States after what we did to them.
My point is: there are good reasons to think this really is a complicated situation. There really can be good reasons to think someone is a danger to us, while at the same time we can’t legally keep them in prison. I think these sorts of situations are a tough call for someone in power; even if you have a legal mandate to do X, it may not be clear what exactly the safest way to the X is, and exact what morality dictates (do you protect your country over the rights of these few individuals, and to what extent) is not an easy question either. I’m not saying there is no right answer, but arriving at that right answer doesn’t seem obviously simple to me.
That’s why we have ADX Florence, aka Supermax. It’s good enough for the terrorists we’ve actually convicted (Omar Abdel-Rahman, Wadih el-Hage, and the Unabomber for instance).
Another question: let’s say you identify an Al Quaeda operative, determine through military interception of communications that he is setting up attacks, etc. Through the same interceptions you find him, sweep in with a spec op force and attack and take him.
How does that work in a U.S. civilian court? Obviously the rules of evidence, etc. are not the same.
This study should be of interest to people interested in who is in Gitmo, how they are being categorized by the government, what their statements are, etc.
BTW - interesting how an OP that was about how nice it is to have an intelligent and thoughtful person take over as President turned into confrontation, with all parties involved Obama supporters. ;)
The report is strange. “If you assume the government is accurate in its assessment, and use the in-court admissions of people who were probably tortured and are desperate to get out as a check on how accurate the government is, it turns out the government’s description of them is accurate.”
Amusingly, even then they don’t think the people there are as dangerous as the government does.
I think it’s great. Intelligent dissent is an essential part of good government, and the general dismissal of dissenting views by the Bush administration was clearly one of its greatest weaknesses.
