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October 5, 2004

the Guantanamo problem

In my opinion, David Luban's 2002 article in Philosophy & Public Policy Quarterly (pdf, pp. 9-14) posed the Guantanamo problem better than anything I have seen since. To paraphrase him very loosely: A state can legitimately hold someone against his will under two distinct circumstances. First, it can detain an alleged criminal in order to try him and prove that he knowingly committed a specific crime. If he is found guilty, the state may imprison him punitively, regardless of whether he poses any present or future threat. Second, the state may hold an enemy combatant during a war. The government need not allege or prove any violation of law, or even a hostile intention on the part of the individual prisoner. However, such confinement cannot be punitive, and it must cease immediately when hostilities end.

We do not want governments to cherry-pick the most convenient aspects of these two situations. But that is exactly what we see in Guantanamo, where prisoners are treated as combatants (insofar as they are detained without criminal charges or due process)--but also as criminals (insofar as they are held individually responsible for their actions and offered no hope of a negotiated release when the "war on terror" ends). This convenient mixing of two sets of norms certainly sets a dangerous precedent for civil liberties.

However, I think that the U.S. Government faces a genuine dilemma. (I'm now speaking for myself and not paraphrasing David Luban.) Hostile fighters picked up in places like Afghanistan and Iraq cannot be held for the duration of hostilities, because they don't belong to organized, hierachical groups with leaders who can possibly sign peace treaties. Nor can they be prosecuted as criminals under US law, which doesn't apply where they were captured. In many cases, they didn't even violate local laws. Yet some of them, surely, pose a genuine danger and can cannot simply be let go.

So what to do? I would suggest the following steps:

1) State very clearly and publicly that special circumstances arise when combatants who hold foreign citizenship are captured on foreign soil, fighting the US on behalf of loose networks instead of states. They cannot be accorded the full set of rights held by other categories of people, such as US citizens, people arrested for violent acts or conspiracies on US soil, or enemy soldiers fighting for formal organizations. The treatment of these Guantanamo-style prisoners sets no precedent for criminal law or the law of war. It is a regrettable exception.
2) Try to minimize the number of people held under these unusual circumstances, by (a) releasing anyone who is not a significant threat; (b) prosecuting anyone who is alleged to have violated US law; (c) turning over to foreign countries anyone who is alleged to have violated their laws, as long as these countries honor due process and human rights.
3) Accord appropriate but limited rights to the remaining prisoners. They cannot be tried in regular US courts, because they are not alleged to have violated US laws. But the government could be required to prove before a special tribunal that each prisoner poses a continuing threat. The prisoner should be able to rebut that claim. Furthermore, those who are held as potential threats should not be otherwise deliberately punished. They should be detained in reasonably comfortable settings.

I am aware that the US Government resists trying those Guantanamo prisoners who are believed to have committed actual crimes, because trials can disclose secret information. But this is where I think we should dig in our heels and say that the need for due process is more important than secrecy, even in a "war." If the basis for holding someone is a criminal allegation, then the prisoner should get a fair and speedy trial. Otherwise, everyone's rights are threatened.

Posted by peterlevine at 10:51 AM | Comments (1) | TrackBack

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