What To Do With The Prisoners

We are going to close Guantánamo, it seems, but its inmates are the real issue. Barrack Obama's line from his Inauguration Address ("We reject as false the choice between our safety and our ideals") was artfully vague. The problem is that American ideals presume such a choice. It was articulated by the British jurist William Blackstone, a contemporary of the signers of the Declaration of Independence. "It is better," said Blackstone "that 10 guilty persons escape than one innocent man suffer." This is the foundation of U.S. criminal law. Clearly, Blackstone's is a doctrine of courage. He knew as well as we do that letting guilty people walk is risky. America, though, has mostly found the courage to do so. What our new president should have rejected—as I believe he does—is the Bush-Cheney assumption that America is a nation of cowards, who will approve anything that might save our precious hides. Reject that and much becomes clear.

The benefit of closing Guantánamo is well understood: we remove one of our enemies' best arguments for hating us. The problem is that we will—finally—have to be forthright when discussing the inmates. There are three problems, corresponding to three categories of prisoner.

There are those, first, that the U.S. government now believes are innocent. We can't release them, the Bushies argued, because no country will take them—no country that is, that does not want to brutalize them for daring to oppose the governing clique. (The Chinese Uighurs spring to mind.) Having locked these people up for years without cause and—to put it delicately—brutalized them, isn't a home and the chance to make a new life the least we can offer them by way of apology? Isn't offering people new lives exactly what America does?

Some will now mention Said Ali al-Shihri, a former inmate who is now Al Qaeda's No. 2 in Yemen. There cannot have been much, if any, evidence against him, or else why release him? Did we release an innocent man who is now taking his revenge? Or a guilty one in error? We will never know. Either way, it is hardly a disaster. Thanks to Guantánamo, Osama bin Laden has few recruiting problems in Yemen. If he were in the United States, we could have kept an eye on him. A single Saudi is no reason to abandon our ideals.

Then there are people the administration believes are guilty and against whom there is solid evidence. Some of them are actually guilty, some, whatever the government believes, are innocent. What we have done historically is rely on the courts to sort out the two groups based on Blackstone. Is terrorism so clearly separate from all other criminal activities that we should be willing to depart from this principle and lock up innocent people because we dare not risk releasing the guilty? I think not.

Those who think our Blackstone courts too soft should consult The Innocence Project. Using recently developed DNA techniques to appeal convictions, they have proven so far that 227 convicts were actually innocent. These people had served an average of 12 years in prison. Did the prosecutors and judges convict the innocent because they did not care? Most likely they believed in what they were doing. It is simply that they were wrong.

The third group are those prisoners we say are guilty and against whom we have no solid, admissible evidence. On the face of it, this group is different from the one above, but the difference is more apparent than real. It turns on this word "admissible." Discarding evidence tends to be referred to as a "technicality." This is a canard. The rules of evidence derive from 200 to 300 years of legal practice and are designed to exclude what experience has shown is unreliable, including, of course, information obtained through torture. What is true is that admissibility works in favor of the accused—and therefore sometimes, the guilty—simply because it was built on Blackstone's aim of protecting the falsely accused.

One final point is the "evidence" too secret to reveal. Assuming this is no mere smokescreen, courts have ways to deal with secret evidence, and others might be devised. Ultimately, though, if we are to be true to ourselves, we must force our government to decide whether secrecy is more important than letting the guilty walk. To govern is to choose. Here, "a decent respect for the opinions of mankind" mandates a decision.

So, do we throw out Blackstone? If we do, we will undoubtedly lock up innocent people and create terrorists—as we have done in Guantánamo. Keep him and some would-be terrorists will go free. How risky is this really? They may want revenge, but will they actually do anything? Studies show that the will to violence declines with age. They may well change. Even if they make plans, though, they will not necessarily succeed. Terrorism is harder than it looks, and few, if any, among Guantánamo's prisoners are criminal geniuses. Anyway, even if the released terrorist achieves his ends, what is the chance of any one of us being a victim? It is very small. If those we release from Guantánamo pull off a new and highly unlikely 9/11 in each of the next 10 years, they would kill slightly over 1/100th of 1 percent of American citizens. The odds of dying in a car accident are 13 times higher. People argue that such an analogy is invalid because the accident victim is somehow in control. This however, is an illusion: even the perfect driver shares the roads with thousands of others. Whether somebody's next fatal error kills you or your neighbor is largely happenstance. How frightened an individual may be about any given risk is of course subjective. How frightened a society should be is not. We routinely ask far more of our soldiers, policemen and firefighters.

President Bush decided on our behalf, and without serious discussion, that he would rather sacrifice our values than ask us to take a small risk. Unlike Bush, President Obama has shown that he is a brave man, both by defying a heightened risk of assassination and by confronting his inner demons. He should ask us to be a little brave, too. If liberty is indeed the self-evident, inalienable right of all men, then a courageous people will require very considerable certainty before depriving anyone of it. The notion that "some people are too dangerous to release" and the evidence be damned is rank cowardice: a bad choice between our safety and our ideals.