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

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."

We have come so far from taking and holding prisoners, based on their own alleged bad acts, that we are justifying holding them forever based on imagined connections to the bad acts of others. Brian J. Foley, at the Boston University School of Law, recently called this process of creating terrorists by possible future proxy "national security state alchemy."

Is there a slim but real possibility that some of the men released from Guantanamo will join the battle against us? Of course there is. But does that mean we should do away with individual fact-finding for each detainee in favor of sweeping geographic conclusions? It shouldn't.  The Pentagon now says that 20 percent of former Gitmo detainees have "returned to the battlefield." Justin Eliott argues these numbers have always been tricky. Very, very tricky. And they depend on what it actually means to rejoin "the battle."

After the events of Dec. 25, it's clear that any connection between any former Gitmo detainee and any act of terror can be posited as causal. As a Gitmo detainee you can be said to have "returned to the battlefield" if you accidentally met the Christmas bomber or golfed with his dad.

Thus Thomas Joscelyn, at the Weekly Standard, argued Monday that former Gitmo detainee Moazzam Begg might well have been instrumental in radicalizing the crotch-bomber, Umar Farouk Abdulmutallab. According to Joscelyn, Begg is connected to Abdulmutallab by a 2007 event hosted by the Islamic Society at the University College of London, of which Abdulmutallab was president. Begg didn't participate. But a senior researcher at the organization he founded after his release from Guantanamo did. Joscelyn concedes that there is no direct proof Begg radicalized Abdulmutallab. But who needs proof?  Looking for links between Abdulmutallab and released Guantanamo prisoners has become an elaborate game of Clue. Maybe Colonel Mustard radicalized him in the conservatory with a lead pipe! And since it's not possible to disprove such conjecture, they all start to sound equally plausible in these panicky moments in which we are desperate for connections and clues.

Even more frightening than the attempt to connect the Christmas bomber with Begg is Joscelyn's argument that Begg radicalized him by way of lectures and videos. If the United States now wants to take the position that those who depart Guantanamo are aiding and abetting terror simply by speaking out about their experiences at the camp, nobody can ever be released again. (Of course, we used to call such activities "speech.") And yet the Pentagon counts among those who have "returned to terrorist activities" former prisoners who have publicly made anti-American statements.

For those of us who had hoped to see Guantanamo disappear into history's rearview mirror, the events of this week show that the defining sins of Guantanamo will plague the camp indefinitely. The implausible connection between the Yemeni detainees and the Christmas bomber kicked things off. Then came yesterday's federal appellate court decision curbing the rights of habeas corpus petitioners there (a ruling that—in the words of a concurring judge—"goes well beyond what even the governmenthas argued in this case"). We are so terrified of imagined connections between the detainees and future acts of terror, we can't possibly let any of them go.

If one accepts the claim that Guantanamo itself, in the words of the president on Tuesday, "has damaged our national security interests and become a tremendous recruiting tool for al Qaeda," every last prisoner at the camp becomes a walking argument against his own release. Not just because of what he may someday do to harm the United States, but because of what he may say to someone else who may in turn someday do something to harm the United States. We never should have built the camp in the first place. But as of today, we can never shut it down if every prisoner there becomes the sum of the very worst things we can possibly imagine.

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