Guantanamo And The Precautionary Principle

January 24, 2009

Whatever happens with Guantanamo Bay, we’re going to have to come to decision about what to do with the detainees, particularly the ones against whom we won’t be able to bring charges in existing courts. There are several possibilities:

(a) let them go
(b) hold them without trial
(c) create a new court in which they can be tried but held to a lower standard of evidence than any existing court will use (i.e., simply increase the likelihood of conviction in highly uncertain cases)

There is, of course, not only no consensus on these choices (although c probably comes closest among the Beltway crowd), but there is heated, nasty, ideological debate among all interested parties.

To come to any conclusion, we need a frank discussion on the two possible errors that we’re afraid of making with respect to the disposition of detainees. Broadly, these can be divided into the two categories of Type I and Type II errors, i.e., false positives and false negatives.

The recent case of a released detainee resurfacing as an al-Qaeda leader highlights (possibly, because we don’t know the reasoning behind his release by the Bush administration) Type II errors (false negatives). The worry here, which is what many on the left focus on exclusively, is the possibility that we will let a guilty terrorist go, who will then be free to take up arms against us. In cases in which there is sufficient evidence to gain a conviction in a real courtroom, this is not a worry – simply indict the prisoner in an existing court. The worry applies when the evidence is thin, uncertain, or “tainted” (e.g., coerced confessions that no existing court would recognize).

Critics on the right would prefer to adopt some version of the precautionary principle in this cases. Specifically, they would like the bar to be set very low when deciding whether to continue to detain people. The danger, they would argue, of letting a terrorist go free is so great that we should continue to detain a person on suspicion of terrorism involvement even when evidence is weak, circumstantial, or inadmissible in existing courts. Depending on how strictly they wish to apply this principle, they will prefer either option (b), holding detainees indefinitely without recourse to courts at all (we could call this the Mitt Romney Double Guantanamo option), as any suspicion of terrorism at all is enough possible danger to detain; or (c), creating a new court that can indict and convict at a lower threshold of evidence (we can call this the Serious Adult Beltway Pundit option), which is willing to allow some Type II errors (letting terrorists go free), but only those that can squeak through courts that are very likely to convict even in the absence of much evidence. You’d have to have a guilty terrorist against whom there is almost no real evidence whatsoever in order to have a false negative under the (c) option.

It is very important to note here that EVEN UNDER THE (B) OPTION YOU WILL STILL LIKELY HAVE SOME FALSE NEGATIVES. Again, even under option (b), under which you forever detain EVERYONE you suspect of being a terrorist, you will still likely have terrorists going free. This is true simply because of the possibility that there will be terrorist bad guys in custody against whom we will have so little evidence on which to base suspicion that they will be freed EVEN UNDER THESE VERY HIGH STANDARDS.

In fact – and this is very important – the only way to make certain, 100% certain, that every real terrorist is detained is to continue to detain forever every single person taken into our custody, without trial, without any possibility of release. And I’m not sure that even the furthest-on-the-right loons like Andrew McCarthy are willing to make that argument (although I could be wrong about that!).

So the bottom-line question here is how much we are willing to tolerate a risk of letting the guilty go free.

Critics on the left such as the ACLU or Human Rights First, on the other hand, are more worried about Type I errors, or false positives. In these cases, innocent people are falsely detained as terrorists. Their preferred options, depending on the degree of their concern over these errors, is exactly the opposite of those concerned about false negatives.

Choice (a), letting every detainee go (who cannot be charged in an existing court of law), no questions asked, is the only way to make sure there are no Type I errors. This is the only way to make sure that no innocent person is detained (although you would still be left with the problem, however small, of innocents being falsely convicted in court). Choice (b), continuing to detain everyone under suspicion, maximizes the number of innocents wrongly held.

Notice that there is no way to decrease Type I and Type II errors at the same time. Whichever you choose to minimize will unavoidably increase the other. Any action that reduces the chances of letting terrorists go free increases the likelihood of holding innocents. For every attempt to prevent an al-Shahri, you’re going to get a Mohammed Jawad, and vice versa.

Our existing justice system, of course, is far more concerned with Type I errors than Type II, that is, it operates on the assumption that it is better to let the guilty go free than imprison the innocent. This is the case in nearly all democratic societies without exception – in fact, most would argue that this is the essence of fairness and is part of the very definition of a democratic society.

If we were talking about even the most heinous of crimes OTHER THAN TERRORISM, from serial killers to serial child rapists and kidnappers, there would not be much debate on this issue. Society essentially has already reached (and had reached this many, many years ago) a consensus view that those under suspicion of crime should be treated, by courts, as innocent until they are proven guilty beyond a ‘reasonable doubt.’

So (after this very long discussion), the only remaining question is whether “terrorism,” however defined, is so categorically worse than any other crime we can consider that it warrants accepting a greater tolerance of imprisoning the innocent.

Do we fear terrorism so much that we are willing to tolerate a greater risk of imprisoning innocent people (and torturing them, but that’s a separate point) than in cases of ‘ordinary’ crime?

Before 9/11 the answer to this was a simple “no.” Throughout modern American history, the most vile terrorists were brought before ordinary Americans courts for trial. Omar Abdel-Rahman is a perfect case (aka “The Blind Sheikh”). Abdel-Rahman is an Egyptian terrorist leader who was responsible for, among other horrible crimes, the 1993 World Trade Center bombing. He’s as nasty a piece of work as you can get. He was tried in federal court and convicted of “seditious conspiracy,” and he’s serving a life sentence without possibility of parole at a federal prison in North Carolina.

9/11 changed things in two ways. One was that this attack killed far more people than any in the past (not for lack of trying – the 1993 attack on the WTC was intended to bring the buildings down too, and only incompetence prevented that), changing society’s perception of “terrorism” from ordinary hijackings and bombings to near-apocalyptic attacks with “weapons of mass destruction.” The other is the way the government and the media incessantly talked up disaster scenarios (whether appropriately or not) after 9/11, particularly with respect to possible attacks using biological agents and nuclear weapons. For the first time, “terrorism” was seen as something distinctly more horrible than even the worst cases of serial murder or serial child rape.

So this is, indeed, the bottom line in this debate. Is terrorism so much worse than any other conceivable form of harm against us that we are willing to toss aside our traditions of justice and fairness and increase our tolerance of imprisoning the innocent significantly? How awful is the release of a terrorist? How revolting is the detention and torture of an innocent person? These are the key questions we must ask ourselves in this debate.

I think you all know where I stand: I see no reason to move away from our traditions of legal justice, and many reasons to stick to them. I see them as not merely convenient but as essential to our self-definition and the way others around the world view us. And I feel the dangers from giving the government the power to imprison and torture based on its own arbitrary suspicions is a far greater threat to America than all the terrorists could possibly muster. In fact, I think that any increase in our tolerance of false persecution of the innocent is an act of handing victory to the terrorists.

But my point here is not so much to make that argument as to try to come up with a framework that can be used to dispassionately discuss the issue. All too often the public discussion on this issue is ignorant and adolescent (what about the ticking time bomb! OR: WE’RE the real terrorists!).

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