Or so, it seems, the Wall Street Journal opines today. Apparently Abdullah Salih Al Ajmi, who blew himself up in order to murder others, had been detained at Guantanamo Bay. A Kuwaiti, Al Ajmi had been represented by Shearman & Sterling, which a group of Kuwaiti families retained to represent the Kuwaitis at Guantanamo Bay.
The Journal seems annoyed that fancy lawyers, part of its readership and economic target market, are willing to represent detainees. Its annoyance impairs its logic, and leads it to insult, no doubt unintentionally, the military officials it wants to defend.
Let's examine the structure of the Journal's piece. I'll pass over the introductory paragraph, which is sarcasm.
1. Ajmi was a dangerous person who wanted to kill Americans. Even setting aside hindsight confirmation of his murderous nature, the Journal reports good evidence for this point: Ajmi admitted as much to his interregators. Logically there might be a chicken and egg problem here--was he in Gitmo because he was murderous or did he become murderous after what happened to him at Gitmo--but experience trumps logic here. The point should be accepted.
2. Ajmi was a petitioner in Rasul v. Bush, which gave detainees rights to hearings.
3. This ruling risked chaos. Here is the Journal's language: "At the time, we wrote that Rasul had "opened the door to a flood of litigation. . . . This pretty much guarantees that the 600 or so Guantanamo detainees will bring 600 or so habeas corpus cases – perhaps in 600 or so different courtrooms, with 600 or so different judges demanding 600 or so different standards of what evidence constitutes a threat to the United States."
4. The Supreme Court's ruling cowed the Pentagon into releasing Ajmi in order to avoid a hearing. (The Journal: "The Pentagon seems to have understood this point only too well, because in November 2005 it released Ajmi into Kuwaiti custody before he could have his hearing;" later the Journal says the military thought people like Ajmi were not a threat "or at least not worth the hassle and expense of the litigation brought about by cases like Rasul.")
This point makes no sense. It contradicts point 1--if Pentagon officials had such good evidence they had no reason to fear a hearing (unless, for some reason, they knew they could not get it into the rules of evidence applicable to the hearings). And the Pentagon is perfectly willing to proceed with hearings for other detainees; the notion that the Supreme Court cowed the Pentagon is too strong to explain such differences.
5. The problem is systematic--the Pentagon has released 500 of 600 prisoners, but only 38 of those 500 pose no risk at all, in the Pentagon's view. 37 of the 500 are reported as having returned to battle, as defined by the Defense Intelligence Agency.
Translated, this point implies: Our 7% recidivism rate is intolerable. Better that all 500 be detained than that we run such a risk. (The Journal implies the number of recidivists might be larger than we know, but we must work with the data we have, and there is no reason to believe the number is anywhere remotely near the point where a released detainee is as likely to resume the fight as not).
The Journal opts for high dudgeon here--"Liberals claim they are only fighting for "due process," but they are doing so for foreign enemies who want to kill innocents and don't deserve such protections. Mosul is one result"--but by the piece's own statistics it should be plain that the vast majority of persons released do not want to kill innocents.
The Journal is willing to damn representation of the 93% of detainees against whom there is no evidence of recidivism. Why 93% of the detainees were undeserving of representation because 7% have committed violence is not explained, and there is no plausible explanation on either consequentialist or nonconsequentialist grounds.
That is the argument. Three comments. First, the Journal implicitly insults the military by implying dereliction of the obligation to determine whether a detainee is a real threat. That is the implication of its conjecture that some detainees might have been released as "at least not worth the hassle and expense of the litigation brought about by cases like Rasul."
I am unaware of any evidence that the military bases release decisions on its view of hassle rather than the merits. To the contrary, my impression is that the military is doing the best it can in a difficult situation, in which it must deal with some truly murderous people and some who never should have been detained.
The Journal also implies, more obliquely, that firms like Shearman cow the military into risky releases. If that were true, it would worry me more than anything the Journal has to say, but I am confident it is not. Shearman is a fine firm, to be sure, but there is no reason to believe it strikes fear into the heart of the Pentagon.
Second, the Journal is attacking an important part of the solution for the problem it identifies. The problem is the mixture of guilty and innocent detainees. I have no doubt there are dangerous people at Guantanamo who should be detained. I think it very likely that there are people there (less now, mercifully, than in the past) who were wrongly detained, and who pose no threat. The job is to distinguish the one from the other. That is what hearings are for, and that is what detainee lawyers are for.
Third, even persons who have done and wish to do terrible things are in fact persons. Because they are in our power, whether we treat them as such says more about us than it does about them. That does not imply any particular system of adjudication, such as ordinary criminal processes, but it does imply procedures adequate to hold them accountable for what they have done or planned to do, and not for what they have not.
Detainee lawyers will make that process work surer, and therefore better. I hope an editorial page that claims to stand for "individual autonomy against dictators, bullies and even the tempers of momentary majorities" will come to realize that some day.
DM