A threat that belongs behind bars
A threat that belongs behind bars
By Eric Posner
Copyright by The New York Times
Published: June 25, 2006
CHICAGO With the recent suicides, reports that detainees have been abused, mounting foreign pressure to close the detention center, and its gulag-like symbolic resonance, the continued political viability of the U.S. camp in Guantánamo Bay, Cuba, is increasingly in doubt. President George W. Bush has himself said that he would like to close Guantánamo. But is he putting politics before American security? If Guantánamo is shut down, what will be done with the detainees?
Critics argue that if the United States cannot prove before a court of law that detainees at Guantánamo Bay have committed a crime, then they should be released. This argument rests on the principle that people should be punished only for committing a crime.
The emotional appeal of this notion is undeniable, and the Bush administration has met critics partway by creating military commissions that will try some detainees for war crimes while denying them the full protections of due process available to criminal defendants. But the critics' argument rests on a half-truth, and as we rethink the wisdom of Guantánamo Bay, we should be sure to understand the complicated reality it conceals.
Detention sounds like a punishment, but it is not always considered one by the law. The courts distinguish between civil detention on the one hand and criminal incarceration on the other. A person who commits a crime may be incarcerated after a criminal trial in which he receives the full package of due-process protections: a lawyer, a jury, an independent judge and so forth. A person who is merely dangerous cannot be criminally punished for being dangerous; however, he can be detained, and he is not always entitled to the expansive procedural protections granted to the accused criminal.
This principle appears in many places in the law. Mentally ill people who are dangerous to themselves and others may be institutionalized for as long as they remain dangerous.
Dangerous undocumented aliens can also be detained. An undocumented alien who commits a serious crime receives a regular criminal trial, but after he has served his time, he is supposed to be deported. Sometimes the home country will not accept him, in which case immigration law authorizes the American government to detain him indefinitely.
The detention of enemy aliens, especially enemy soldiers, during wartime is a long-established practice. Enemy aliens and soldiers are not detained because they have committed crimes; they are detained because they are dangerous. During World War II, the United States detained hundreds of thousands of enemy soldiers in prison camps on American territory and elsewhere. Because being an enemy soldier is not a crime, these soldiers did not receive trials before their internment.
The Bush administration has failed to persuade its allies and many Americans that these wartime rules are applicable to Al Qaeda, possibly because, unlike a conventional war, the war against foreign terrorists is fought on ambiguous territory and has no foreseeable end.
As a result, people are less willing than in previous wars to trust the government's claim that someone found on the battlefield, wherever it may be, is a continuing threat rather than a civilian or a soldier ready to lay down arms for good. But the underlying principle - that dangerous aliens may be detained even if they have not committed crimes - is the same.
The half-truth that one can be punished only for committing a crime needs to be filled out with the larger truth that the government may detain dangerous people in order to protect the public. The question of whether to close Guantánamo is a question about whether suspected members of Al Qaeda are as dangerous as people made violence-prone by mental illness, enemy soldiers during wartime, undocumented aliens who have committed serious crimes, recidivist violent criminals and traditional subversives during times of emergency.
If they are, the United States government can, without offending American legal traditions, lock up suspected Al Qaeda members without the protections afforded by a full- blown criminal trial. Whether doing so is wise policy depends on the extent to which Al Qaeda continues to pose a threat to American security, the extent to which traditional criminal law protections hinder necessary security measures, the moral harm that occurs when the government erroneously detains people who are harmless, and the diplomatic constraints imposed by allies. It does not depend on an appeal to general principles.
Eric Posner, a professor at the University of Chicago Law School, is co-author of the forthcoming "Terror in the Balance: Security, Liberty and the Courts."
By Eric Posner
Copyright by The New York Times
Published: June 25, 2006
CHICAGO With the recent suicides, reports that detainees have been abused, mounting foreign pressure to close the detention center, and its gulag-like symbolic resonance, the continued political viability of the U.S. camp in Guantánamo Bay, Cuba, is increasingly in doubt. President George W. Bush has himself said that he would like to close Guantánamo. But is he putting politics before American security? If Guantánamo is shut down, what will be done with the detainees?
Critics argue that if the United States cannot prove before a court of law that detainees at Guantánamo Bay have committed a crime, then they should be released. This argument rests on the principle that people should be punished only for committing a crime.
The emotional appeal of this notion is undeniable, and the Bush administration has met critics partway by creating military commissions that will try some detainees for war crimes while denying them the full protections of due process available to criminal defendants. But the critics' argument rests on a half-truth, and as we rethink the wisdom of Guantánamo Bay, we should be sure to understand the complicated reality it conceals.
Detention sounds like a punishment, but it is not always considered one by the law. The courts distinguish between civil detention on the one hand and criminal incarceration on the other. A person who commits a crime may be incarcerated after a criminal trial in which he receives the full package of due-process protections: a lawyer, a jury, an independent judge and so forth. A person who is merely dangerous cannot be criminally punished for being dangerous; however, he can be detained, and he is not always entitled to the expansive procedural protections granted to the accused criminal.
This principle appears in many places in the law. Mentally ill people who are dangerous to themselves and others may be institutionalized for as long as they remain dangerous.
Dangerous undocumented aliens can also be detained. An undocumented alien who commits a serious crime receives a regular criminal trial, but after he has served his time, he is supposed to be deported. Sometimes the home country will not accept him, in which case immigration law authorizes the American government to detain him indefinitely.
The detention of enemy aliens, especially enemy soldiers, during wartime is a long-established practice. Enemy aliens and soldiers are not detained because they have committed crimes; they are detained because they are dangerous. During World War II, the United States detained hundreds of thousands of enemy soldiers in prison camps on American territory and elsewhere. Because being an enemy soldier is not a crime, these soldiers did not receive trials before their internment.
The Bush administration has failed to persuade its allies and many Americans that these wartime rules are applicable to Al Qaeda, possibly because, unlike a conventional war, the war against foreign terrorists is fought on ambiguous territory and has no foreseeable end.
As a result, people are less willing than in previous wars to trust the government's claim that someone found on the battlefield, wherever it may be, is a continuing threat rather than a civilian or a soldier ready to lay down arms for good. But the underlying principle - that dangerous aliens may be detained even if they have not committed crimes - is the same.
The half-truth that one can be punished only for committing a crime needs to be filled out with the larger truth that the government may detain dangerous people in order to protect the public. The question of whether to close Guantánamo is a question about whether suspected members of Al Qaeda are as dangerous as people made violence-prone by mental illness, enemy soldiers during wartime, undocumented aliens who have committed serious crimes, recidivist violent criminals and traditional subversives during times of emergency.
If they are, the United States government can, without offending American legal traditions, lock up suspected Al Qaeda members without the protections afforded by a full- blown criminal trial. Whether doing so is wise policy depends on the extent to which Al Qaeda continues to pose a threat to American security, the extent to which traditional criminal law protections hinder necessary security measures, the moral harm that occurs when the government erroneously detains people who are harmless, and the diplomatic constraints imposed by allies. It does not depend on an appeal to general principles.
Eric Posner, a professor at the University of Chicago Law School, is co-author of the forthcoming "Terror in the Balance: Security, Liberty and the Courts."
posted by Carlos T Mock at 2:58 PM
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