Preventive Detention Law is Not the Answer for Guantanamo Detainees

It would effectively trade habeas corpus for an illusion of security.

With the incoming Obama administration promising to close the prison at Guantanamo, the fate of the roughly 225 remaining detainees must be addressed, and soon. In his excellent New York Times article of 14 November 2008, William Glaberson outlines the currently raging debate over the concept of establishing a new legal doctrine of “preventive detention” to justify continuing their indefinite incarceration, even if the venue must be changed. Be warned: any such “preventive detention” doctrine would be an assault on the concept of habeas corpus, one of the most basic rights underlying our legal system and even our Western concepts of personal and political freedom. The US is not based on race, ethnicity, religion, or even on territory; it is based on concepts and ideas, codified in the Constitution, which unify us beyond the trappings of our individual origins. If we abandon those ideas in favor of an illusion of security, then we risk abandoning our own rights and freedoms.

The Guantanamo detainees should, in my opinion, be handled according to the Third or Fourth Geneva Conventions, and the First Protocol of 1977. They were captured in a war zone under suspicion of activities against our forces deployed there, and they remain under the control of the US military. But since the Bush administration insists that they should not be subject to the Geneva Conventions, that only leaves the justice system to handle their cases. There is no middle ground, no special limbo-inducing category. That is a violation of international humanitarian laws to which we are a signatory. All this talk of establishing a “preventive detention” law only reflects the bizarre status we have accorded to the Guantanamo detainees, and our resistance to handling their cases according to existing – and perfectly suitable – international treaty or national law.

It is deeply disturbing that many quite thoughtful and educated people seem to believe that “preventive detention” is necessary to protect the US from terrorism, and even express fear at what may happen in the absence of such Draconian measures. Glaberson quotes Benjamin Wittes, a fellow at the Brookings Institution, as saying, “I’m afraid of people getting released in the name of human rights and doing terrible things.” And that is just the problem. We must not let fear drive our notions of security and justice.

A “preventive detention” law to protect against terrorism would be difficult to frame, and would risk ensnaring our own citizens on the one hand, and ineffectiveness against bona fide terrorists on the other. Would such a law apply only to foreigners? What about US citizens who are suspected terrorists? What is the legal definition of terrorism? Can we charge people as terrorists for suspicion of murder, kidnapping, sabotage, fabrication of explosives, or destruction of property? What makes any of these crimes “terrorism” as opposed to plain old crimes? What makes a “terrorist” anything more than just an organized criminal?

I would postulate that what makes any of these otherwise ordinary crimes “terrorism” is the political motivation behind them. I would also postulate that this motivation does not change the planning, execution, or aftermath of these crimes one iota, and that – within US jurisdiction – they should be handled as the crimes that they are by law enforcement, using the plentiful and well-defined laws that we already have on the books. That also means that the criminals are entitled to all the rights and privileges that our justice system confers. Making exceptions for some cases – and keep in mind that they differ from other cases only in their motivation, which can be difficult or impossible to determine – opens the door to abuse.

Certainly, handling the Guantanamo cases purely according to US law and the justice system would result in some of the detainees going free. Yes, there is a risk that a former detainee could commit some future crime and harm some of our citizens. But our legal system takes that same risk every day with countless suspects and convicted criminals. What is right and fair is supposed to prevail. The William Ayers case, which was rehashed during the 2008 campaign, is instructive. What was not often mentioned in the press is the fact that federal charges against Ayers were dropped in 1973 due to prosecutorial misconduct, so he was never tried for his crimes and never convicted. Such is our system, and it is sometimes infuriating, but we consciously choose to err in favor of defendants and not the government. We punish prosecutorial misconduct by allowing defendants to go free because we recognize that this is a lesser threat to our society than allowing such misconduct to rage unchecked. We should not be quick to surrender that protection on the basis of irrational fear.

Wittes recently published Law and the Long War: The Future of Justice in the Age of Terror. He writes that his purpose is to shake the confidence of those who are firm opponents of abusive interrogation and “legally dicey wartime practices,” as well as those who are firm believers in the same. He goes on to say, “In the fight against global terrorism, the powers of presidential preemption will not remain vital without support from outside the executive branch.” I agree with that statement, if not with his point. Thank the Founders for our system of checks and balances!

As the pendulum begins to swing back in that system of checks and balances, the US courts have weighed in against the Bush administration detainee doctrine. In June, the Supreme Court ruled that Guantanamo detainees retain the right of habeas corpus. In October, federal judge Ricardo Urbina ordered the release of 17 Uighurs against whom there are no charges, although that ruling is under appeal by the government; and on 20 November, another federal judge, Richard J. Leon, ordered the release of five Algerians from Guantanamo, on the basis of insufficient evidence, although this decision is also expected to be appealed. If this trend continues, we can expect that “preventive detention” would fare poorly in the courts.

Freedom is a fragile thing, and it comes with a price. The price is often portrayed as a young soldier fighting to defend his country, but the often unappreciated price is the risk that every member of the public takes every day in return for having a free and open society. We think little on the statistically small risk of attack as we go about our daily lives, until something happens. The true moment of greatest danger comes in the immediate aftermath of an attack such as 9/11. It is then that we must decide: do we insist on preserving our freedoms and rights, and thus our way of life, although we now are much more aware of the dangers that we really face every day? Or do we eagerly, in our moment of fear, trade away our freedoms and our rights in exchange for the illusion of security?

Copyright R.N. Phillips, November 2008