But neither the justices nor the public should take quite at
face value the insistence, however passionately and eloquently argued, that
large numbers of innocents populate
They might choose a different word as well to describe Muktar
Al Warafi, who openly acknowledged traveling to
They might have thought another detainee, Abdul Latif
Elbanna, was admitting something substantial, rather than professing innocence,
when he described helping bring an Al Qaeda figure hiding in
Waxman conceded, immediately after stating that all of the detainees before the court deny all wrongdoing, that the facts of their cases differ a lot from one another. “[I]t may well be,” he said, that habeas corpus review of the type he advocates “would reveal perhaps that some of these [detainees] are lawfully detained.” Indeed, it may. In many cases, the court would need look no further than the detainees’ own words--one of many reasons the Bush administration’s allergy to judicial review of detentions has been so self-defeating.
But the broader debate over
But there is also an element of romantic fantasy in the
belief that large numbers of
The admissions vary a great deal. Some detainees proudly declare their Al Qaeda membership and terrorist activity. Many more admit fighting for the Taliban. Some Afghans claim plausibly to have been forced into Taliban service. And a fairly large group denies membership or belligerence but admits to some lesser degree of affiliation--staying in Taliban or Al Qaeda housing or taking training, for example--that is at least suggestive.
The denials vary a great deal as well. In some cases, they
have the ring of truth. In other cases, they are so patently absurd as to warrant
quick dismissal; in one case, a detainee claimed to have been buying rare
collectibles—mummies, to be precise. In the vast majority of cases, they are
not easily assessed one way or another in the declassified material. A great
many detainees tell more or less the same small number of stories: That they
The more I studied the CSRT and ARB records, in fact, the more convinced I became that the government is another victim of the inadequate process that it set up for reviewing the detainees--which has lost in the public arena no matter what those reviews found. The CSRTs found 38 out of nearly 600 detainees to be “no longer enemy combatants,” a bizarre euphemism for erroneously held. The ARBs quickly freed another 14 of those the CSRTs found to be enemy combatants. Yet where the review processes have freed people, they never received any credit for separating the wheat from the chaff. When detainees openly admitted their affiliations, validating the government’s claims, the secrecy associated with the hearings and records meant that the public never learned about it. And when the reviews resolved contested issues of fact in the government’s favor, their ad hoc status, stacked rules, and lack of congressional authorization denied their judgments credibility in the public eye. Almost no matter what they did, people saw them as unjust.
This country desperately needs a new adjudicatory framework for these detainees--one that includes an expanded judicial review, fairer rules, and clearer, less permissive standards for detainability. On this point, my only disagreement with Waxman is on the question of which branch of government should set it up. He urges the courts to do it through the habeas process; I want to see Congress design and enact a statutory scheme. That said, I don’t believe that the result of such a process would be freedom for a lot of innocent people. The more likely outcome would be continued detention with the judiciary’s stamp of approval for the majority of detainees, and freedom for two groups: A small group of true innocents and a larger group consisting of dangerous folks against whom the government has only weak evidence.
The scary question we need to address as a society is how large we are willing to let that second group grow in order to make sure the first group becomes as small as possible.
BENJAMIN WITTES is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the
By Benjamin Wittes