So Are They All Just Criminals?

Deborah poses what I think is really the pivotal question in the whole detention debate: If you design the detention regime reasonable and fairly–as I propose to do–isn’t your detainable class limited to people who are actually criminals and, if so, why not just try them as criminals? I believe, largley based on Bobby’s excellent work on this subject, that the substantive answer to her question is yes. Anyone (or almost anyone) detainable under the scheme as I envision it would, in an ideal world, be prosecutable as a criminal, for he has committed a crime. But we don’t live in an ideal world. In our actual world, there are likely to be prohibitive practical barriers to that prosecution in some cases; these are the problems that a reasonable detention scheme can constitutionally help alleviate. The debate turns heavily on how large and dangerous one believes that set of cases to be.

On the substantive side, there are likely people at Guantanamo (taking all government allegations as true for the purposes of argument) who committed no crime as the law stood in 2001. Since then, however, the laws have changed and almost any meaningful affiliation with, material support of, or training with Al Qaeda would now generate criminal liability. Bobby has argued powerfully that the problem is not in the scope of the detention authority the criminal law currently contemplates.

The problem, to be as candid as I know how to be on the point, lies in the quantity, quality, and admissibility of evidence of that criminality. What if, for example, you had a detainee transferred by Pakistani authorities, who also provided preponderant evidence, but not proof beyond a reasonable doubt, that the detainee in question was an Al Qaeda chemical weapons designer. And let’s also imagine that this evidence, while persuasive, had no convincing chain of custody and that the people who collected it would not be available to testify (indeed, perhaps the information is provided to the U.S. on the condition that its source not be revealed). This is simply not a prosecutable case. It does not follow from that, however, that there is no proper role for detention here. Indeed, I believe there are a lot of detainees, current and future, whose prosecutions will be impaired by such problems yet whom only a truly maladaptive society would set free.

If we do not create some lawful mechanism to handle detentions in such situations, the result will not be a great victory for human liberty. The result, rather, will be targets killings or detention in some kind of covert action; or the CIA will turn such people over to some foreign intelligence service that will hold them–much more brutally than we will–on our behalf.

I wish I could agree with Glenn that if you design the trial regime correctly, you could prosecute everyone you might need to detain. While I am sympathetic to the idea of designing a trial regime tailored to the war on terror, I just don’t think his prescription is plausible. Unless you reduce trial standards very far–and I’m not willing to do that–there is going to be a gap, I suspect, between the group you can prosecute and the group even a reasonable executive branch will want to keep locked up. The challenge, in my view, is to raise the standards for detention and lower the standards for trial sufficiently to alter the incentive structure that exists between the detention and trial regimes–which now militates overwhelmingly against bringing detainees to trial.