Discussion has recently increased, especially given President Obama's recent national security speech, over the question of what we should do with detained foreign nationals whom we reasonably believe wish to harm our country and its people but whom we claim that we cannot convict of crimes.
I'm sure that this won't be the best analysis I can possibly do -- I'm going to try to toss it off in an hour starting at 5 Pacific Time before going back to work -- but I think that some things have been missing from at least the analysis that I've been seeing, both here and in the media. So let's see where this discussion leads.
The habeas problem
First, let's give up on the phrase "prolonged detention," which smacks of the same cant as "enhanced interrogation techniques." We're talking about "indefinite, which can mean permanent, administrative detention." There's another term for it: suspension of habeas corpus, which is the right to have the government legally justify its detention of you or else set you free. Now, suspension of habeas corpus is allowed by the Constitution, which states:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.
Let's grant, for the sake of argument, that public safety might require suspending habeas corpus for Guantanamo prisoners if such suspension is authorized. (The problem with accepting such an apparently obvious point is that while I would trust Obama to make that determination honestly, I would not trust Bush and Cheney.) The question then becomes: are we in a situation of rebellion or invasion? I don't think that either can be justified. We're not being invaded by these prisoners, if the term is to have any fair meaning, because we brought them to Guantanamo (and may bring them into the U.S. itself when that facility is closed.) Nor, as non-U.S. residents, do I think that we can characterize them as being rebels. The Supreme Court agreed in Boumedienne that Guantanamo detainees have the right to file habeas petitions. But being able to force the government to justify imprisonment of you is not the same as being able to force it to free you. It can still imprison you if it has the right to do so.
How could the government have the right to continue to imprison someone without trial? If the person in question was a prisoner of war, this would be simple: detention could last until the end of the conflict if not ending sooner. But the Guantanamo detainees were not prisoners of war -- requiring that they conduct "military operations according to the laws and customs of war, be part of a chain of command, wear a "fixed distinctive marking, visible from a distance" and bear arms openly" -- according the Geneva Conventions -- but rather "unlawful combatants." (No, Bush and Cheney didn't just make that term up.) They were still afforded rights under common law and the Uniform Code of Military Justice, however, despite the best efforts of the Bush Administration.
The larger problem with analogizing Guantanamo detainees to the status of Prisoner of War, however, is that the fight against terrorism is a war without end. If they can legally be kept without trial until there is no more danger of groups with which they are or could become affiliated trying to murder Americans or damage American interests, then we literally invite lifetime detention without trial. That should be considered an unacceptable outcome. Again, we might trust Obama to wield this power wisely, but we can't accept the same of Bush and Cheney.
Well, then why can't we try them?
The problem with trying them, we are told, is that the evidence we have for their guilt may be hearsay or may be tainted due to its having been obtained by torture. The argument is: "we are confident that if we could try them, they would be convicted, but we can't, so we have to be able to keep them without trial."
A few side observations before proceeding from this point.
First, one argument made is that the government made its own bed, by torturing prisoners and now has to accept the consequences. All I'll say here is that this argument, for all its admirable logical consistency and good analogy to the operating of the Exclusionary Rule and other aspects of criminal procedure in releasing people we are pretty sure are guilty, is probably simply not going to fly. Philosophically, yes, if we can't try people because what they now say is the "fruit of the poison tree," they should be released. Practically, I don't expect more than a small sliver of the U.S. population, or its leadership, to promote that view, and my diary is about how we can come up with an actual solution to the problem.
(Note: I hope that, now being well ahead in the competition to get people to accept that waterboarding is torture, we concentrate on getting people to see that other benign-sounding methods that are less ghastly -- in the "this is actually drowning people" sense -- than waterboarding, such as sleep deprivation and stress positions, are also "torture." "Torture" is "using pain to coerce behavior." That expansive definition causes other problems, distinguishing between levels of torture, which I won't discuss here. The law makes such distinctions of degree, which generate distinctions in kind, all the time.)
Second, a plausible argument can be made that the U.S. government does not want to be able to solve the problem of how to try people, because if they can solve the problem they don't get all of the spiffy new powers they would like to have. I don't know if that was true of Bush, or whether it is now true of Obama, but if true in either case my hope is to demolish any such hope.
What are our actual interests here? Our interests are to maintain the moral integrity of our legal system as much as possible while preventing people who want to harm the country from doing so. That means that, where we can't introduce evidence for a past crime, and truly have no other means -- not even in a hypothetical "National Security Court" with secret evidence, attorneys on both sides and judges with security clearances, and limitations on the direct right of confrontation when hearsay evidence that would reveal our intelligence sources and methods -- of trying someone for past crimes, then we can't prosecute them for that. Such people cannot be held based on their past crimes.
Does that mean that they are necessarily released? Not necessarily. The past is prologue, but it is not the whole story.
Guantanamo detainees, both ones who truly were the "worst of the worst" and those who were brought in wrongfully or mistakenly, may be committing crimes right now. They can't do much to advance them, presumably, but they can still commit them. This is a class of crimes known as "inchoate crimes": crimes that have not yet come to fruition at the time one has been apprehended.
Inchoate crimes
Inchoate crimes include the crime of "Attempt" (usually attached to the crime being attempted, so that we talk about "attemped murder" or "attempted robbery"), "Solicitation" (trying to get someone else to commit a crime), "Misprision" (concealment of a felony to which one was not an accessory), "Stalking" (this is why otherwise legal behavior like following someone becomes illegal), and -- most popular of all -- "Conspiracy" (joining with others in a plan to commit crimes.) As thousands of students who will be taking the bar already know or will soon learn, conviction for each of these crimes requires that some actual steps be taken towards committing a further substantive crime.
To me, this offers a resolution of the problem -- one I would not, I hasten to add, try to expand into other areas where people are confined. If we can't deal with past actions, let's deal with present intentions and inchoate actions. Let's prosecute the people who are, right now, at least soliciting and conspiring to commit future criminal acts against Americans (or others, to the extent our law applies.)
Essentially, if a Guantanamo prisoner is truly interested in committing future crimes and is taking steps towards doing so, and if we can prove it to the satisfaction of a jury, then they should get to keep the guy in prison. Finding reliable evidence of present intentions and actions, though, is not something that we can leave to the people currently holding them. I think that credible sources have to be brought in to let people know that their incarceration is being put under new management -- perhaps related to the Justice Department -- and that they are being granted X, Y, and Z rights. Then have these new actors interview the detainees, about themselves and each other.
In the case of Khalid Sheikh Mohammed, for example, the inchoate crimes he has apparently tried to further -- if he is indeed, as some reports say, still committed to the descruction of the United States and not, as some other reports say, now a vegetable after 183 waterboardings and more maltreatment -- would be enough to lock him up for a long time. (I don't grant for a moment that we couldn't already lock him up for other crimes base on evidence at hand before we even captured him, but that's a separate argument.) The same for others. A lot of these people are evidently happy to tell you what they plan to do to Americans; arguably, their conveying these thoughts to others as an attempt to form a plan, etc., would constitute conspiracy. Those people so far as I'm concerned, can stay locked up -- but now not based on indefinite administrative detention, but pursuant to the actual laws that they are now breaking.
By contrast, there may be some held in Guantanamo (the Uighurs seem to be a good example) that truly do not express the desire to harm the U.S. or break any laws. Maybe they're lying. The Administration can go ahead and try to prove it, if they want. But if they can't prove to the satisfaction of a jury that these people presently want to harm and are taking concrete steps towards harming the United States or other targets listed by law, then they should have to let them go. Yes, some of them may turn out to have cleverly concealed a plan to harm Americans, which they will then put into effect. There may be ways -- tailing them, bribing them, and let's not forget apologizing to them -- to blunt that. But it may happen. That's always the case with a justice system that -- happily -- is willing to release some people whom it gives the benefit of the doubt when their rights are violated. (Some guilty people are freed by juries every day, after all, and we don't keep them locked up.)
There's one thing I dislike about this plan, but I don't see a way around it: some people who were not guilty of anything when they entered Guantanamo may have now become radicalized into people who hate the U.S. and want to see it harmed. Under my proposal, these people would not get out, while someone who was legitimately a terrorist (but we dcouldn't prove it) and who now has given up that orientation would be freed. That is a weird result, but a focus on present danger makes it a fair one. Maybe allowing people to bring a tort action, from detainment, against the American government for their initial detention would help to heal some wounds; I'll expand on that in comments if people are interested.
In short, I do not believe that even the presence of evidence that is tained and unusable, regarding crimes that purportedly led people into Guantanamo, truly should prevent us from prosecuting people who deserve it. I don't think that President Obama should have the right to indefinite administrative detention, because this proposal is a viable alternative. And I surely don't think any Republican successor should have it.
That's what I think for now, at least, without having discussed it with anyone; perhaps one or more of you will change my mind.