Detention Decisions

Eric Holder has announced that he's almost ready to make decisions about what to do with the remaining Guantanamo detainees. Nothing about this is easy. Much about it is a matter of overcoming the astoundingly incompetent and damaging detainee policy of the Bush administration. If the detainees had been arrested and then treated as either regular prisoners of war or as criminals, it all would have been much clearer. There are domestic and international laws, institutions, and policies widely accepted as legitimate for dealing with POWs and criminals. But not with tortured and otherwise abused detainees, and not when they've been rounded up with little heed for whether they have connections to al Qaeda or not.

As I see it, there are three basic difficulties to be surmounted (and note that these problems arise from Bush administration policy rather than being matters of intrinsically difficult legal questions):

The first is what to do with some of the falsely imprisoned detainees who've been cleared of terrorist connections. The options are basically repatriation, release within the US, or expatriation to a third country. The problem is that some of these detainees risk oppression, imprisonment, and torture in their own countries. This is the case with the group of Uighur prisoners, but also with an estimated 40 or so other prisoners. Although some countries in Europe have offered help (France, Spain, etc.), third parties are nevertheless reluctant to accept former Guantanamo detainees for the potential risks and for the reason that they are a product of a policy that many of these countries strenuously disagreed with. The Czech Republic, for instance, has wondered aloud why they should help clean up a mess the US created.

The second difficulty is the kind of case emblematic in the example of Kuwaiti Abdallah Saleh al-Ajmi. Ajmi was imprisoned in Guantanamo for two years, and passed through the military tribunal system insisting on his innocence of ties to al Qaeda and the Taliban. He was repatriated to Kuwait in 2005. There he was tried and acquitted in 2006. Last year he reportedly drove a truck full of explosives into an Iraqi police station, killing 13 policemen and himself (there's some question of whether he died in this suicide bombing or a separate one). According to family members, al-Ajmi was a regular fellow uninterested in jihad before his imprisonment at Guantanamo. But, tormented by that experience, he became increasingly radicalized. The difficulty with this kind of case (assuming al-Ajmi's prior "innocence") is that little can be done about it. If prisoners are innocent of connections to al Qaeda, other terrorist groups, or the Taliban, they must be released. A person cannot be held legally based upon suppositions about what that person might possibly do one day in the future. If you want to suggest a person can be held on such grounds, you're allowing for the police to come knocking on your door any day now and detaining you indefinitely, which violates the US Constitution and international law. Al-Ajmi's case is an inevitable risk created by Bush policy.

I suppose that Holder will be dealing with these two sets of issues first since the third case is the most difficult, both immediately and over the long-term. That is, how to deal with the truly dangerous prisoners? Especially those who have been tortured and abused? Indefinite detention and military tribunals have been overruled by the Supreme Court in Boumediene v. Bush (which extended habeas corpus to Guantanamo). They must be tried in some forum. But evidence obtained through abuse is inadmissible in any neutral court. And, furthermore, there are legitimate concerns about exposing intelligence operations during, say, civil criminal trials of these detainees (concerns which, nevertheless, I think can be allayed). There are a number of policy proposals regarding what to do in this third case (from ongoing "preventive detention" to the creation of a "National Security Court" to "try or release"), none of them all that great....

More later on this point....