The Supreme Court Breakfast Table

Are They Really Just "False Positives"?
An email conversation about the news of the day.
June 24 2008 11:09 PM

The Supreme Court Breakfast Table

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Jack: Thanks so much for your thoughts on the Guantanamo case. As Walter observed last night, your actual experience here is worth exponentially more than so much of the rhythmic drumming we've been hearing on the subject. And I completely agree with your conclusion that this case is not as consequential, for good or for bad, as some court-watchers have suggested. This decision—like Hamdan—is a sort of jump-start for democracy. It will likely lead the executive branch and Congress to further refine their terror policies. Checks! Balances! It works!

If I may take issue with you on one point, it's your characterization of my characterization of the remaining prisoners at Gitmo as "not terribly dangerous." I don't think I said that. Never having met any of them, I would not presume to judge their dangerousness, especially after more than six years of being penned up like baby veal. I believe that what I did say was that among the 270 men still held at Guantanamo, there were "people who were grabbed as teens and others who claim actual innocence." Whether they ever were dangerous, or whether—after six years of abusive confinement—they have become so, I have no idea. It's all come down to a smackdown of the expert reports.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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I suppose that I can see your citation of Ben Wittes' Chapter 3—or his estimate that of the 270 prisoners at Guantanamo, about 100 are too dangerous to let go—and raise you the incredibly disturbing new McClatchy report last week on released detainees who had been captured "on the basis of flimsy or fabricated evidence, old personal scores or bounty payments." (That same McClatchy report confirms that prisoner abuse and mistreatment were rampant at Gitmo, and the new report from Physicians for Human Rights arrives at the same conclusion.) I will then cite the Seton Hall study showing that just 45 percent of 516 Guantanamo detainees committed hostile acts against the United States or its allies, and only 8 percent were al-Qaida fighters. You will no doubt counter with the study from West Point's Combating Terrorism Center, which (using the same raw data) found that 73 percent of the prisoners posed a "demonstrated threat." Do we really think this is a matter best settled by dueling expert reports?

Using the report of your choosing, let's agree there are incredibly dangerous people still at Gitmo, but also that there are very probably some who are not—or who are dangerous now but were not when they were captured—a state for which the United States bears at least some moral responsibility. And then let's get to the hard part. You write that "higher standards of judicial review designed to minimize false positives in military detentions will likely produce false negatives that mean more Americans will be killed than would otherwise be the case." Do we protect the rights of these false positives or not? I always thought that was a pretty fundamental legal principle, although sometimes we call them "innocents" rather than "false positives." It is the willingness to sacrifice both these nondangerous prisoners and those fundamental principles that frustrates liberals most.

I imagine Walter and Cliff have more to add, unless Walter is carbo-loading in anticipation of tomorrow's SCOTUS dump. Again, Jack, thanks for your thoughts.

Best,

Dahlia