We're keeping detainees in the camp because keeping them there makes them dangerous?

The law, lawyers, and the court.
Jan. 6 2010 6:29 PM

The Sins of Guantanamo

We're keeping detainees in the camp because we're afraid of things they haven't done yet?

Umar Farouk Abdulmutallab.
Umar Farouk Abdulmutallab

When it comes to being detained indefinitely at Guantanamo Bay, it's not so much what you know as whom you know. Or whom you are alleged to know. Or whom you may know. Someday.

Dahlia Lithwick Dahlia Lithwick

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

That was the case back in 2002—when the government's own best evidence showed that most of the detainees had been picked up for "associating" with the Taliban or al-Qaida (and that most were turned in for bounties rather than captured by U.S. forces). And it's still the case this week, as the Obama administration announces that about 30 Yemeni prisoners—already cleared for release from the camp—will not be freed after all, merely because they're from Yemen. The clearance they've received is now meaningless: Men poised to begin their ninth year of incarceration at the camp will remain there, not because of anything they have done, but in fear of whom they may meet on the streets back home in Yemen. The new twist, then, is that prisoners can now be held indefinitely not just because they once knew a terrorist, but because they may meet one someday in the future.

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In light of America's spontaneous discovery of the existence of Yemen on Christmas Day, it may make political sense to argue that Guantanamo detainees repatriated there will turn to terrorism. But it makes no more legal sense than their original incarceration did. The idea that we would hold onto these men based solely on a foiled terror plot connected to their country of origin shows how little factual accuracy matters when it comes to Guantanamo.

A reminder: Despite Donald Rumsfeld's famous assertion that the folks at Guantanamo represented the "worst of the worst," we know that the majority of the prisoners at the camp were largely just unlucky. As Lt. Col. Thomas S. Berg, who served on the original legal team for military prosecutions, once put it: "It became obvious to us as we reviewed the evidence that, in many cases, we had simply gotten the slowest guys on the battlefield. We literally found guys who had been shot in the butt." Michael Scheuer, head of the CIA's bin Laden unit until 2004, similarly admitted: "We absolutely got the wrong people."

Yet all these years later, we're struggling with what to do with these people because some of them may have morphed into potential hardened criminals—perhaps because we have radicalized them by holding them for years without trials. And it's a problem that's only compounded when we connect them to random terror incidents to which they have no discernible connection.

Another reminder: The whole concept of "future dangerousness" is a slippery one in criminal law. Most studies have shown that when juries attempt to guess at future dangerousness in sentencing capital defendants, they get it wrong. Predictions by psychiatrists about a specific prisoner's future likelihood of dangerousness are often rooted in pure speculation. The whole notion of guessing at someone's likelihood to return to crime (or in the case of the Yemenis at Gitmo, predictions that they may turn to it in the first place) is so speculative and fraught that some scholars have rejected as unconstitutional. As professor Joseph Kennedy of UNC recently put it: "Future dangerousness is too dangerous as a sole basis for incarceration because it appeals too directly to our deepest, strongest, and potentially most violent instinct—self preservation."

The argument that there may be some people at Guantanamo who may, if released, take up arms against the United States is rooted in precisely the type of fear and paranoia Kennedy warns about. It disregards the fact that—as the Center for Constitutional Rights said in a statement yesterday—"the vast majority of the men at Guantánamo should never have been detained in the first place, and that over 550 have been released and are peacefully rebuilding their lives." We don't as a rule punish dozens of innocent men because of fears about one or two. And how far can we take arguments about future dangerousness? As Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch has argued, under a broad "future dangerousness" theory, "the United States military could march through the streets of Kandahar, Riyadh, or Islamabad, arrest and detain any dangerous looking male between the ages of 20 and 35. After all, at least some portion of them might one day join forces with al Qaeda or the Taliban, or want to."