War on Terror

Recidivism And The Guantanamo Exception

Violent criminals in America have shockingly high rates of recidivism. So do terrorists. Why does the legal system treat them so differently?

Marc Serota/Reuters

America has had a serious problem with violent crime for many years. In the past, as a country governed by the rule of law, we’ve figured out how to handle the potential risk that criminals pose. If they serve their terms, they’re released into society. If they’re rearrested and the government can’t prove a case against them, they go back on the streets, often to commit heinous crimes. Recidivism is part of the social contract in this society of freedom and justice for all.

Statistics show that the rates of recidivism in this country are significant, and the numbers of violent recidivists in the United States are remarkable. Figures provided by the Department of Justice for 2007, for example, estimated more than a million parolees in the United States as “at risk of reincarceration.” About 16 percent of parolees returned to incarceration that year. Figures in the same report showed that 2.5 percent of released rapists were arrested within three years of release; 1.2 percent of those who had served time for homicide were rearrested within the same time frame.

There’s not much debate about this issue of recidivism among violent criminals in this country, because we Americans recognize the cost of living by the rule of law in a free society: we know that sometimes released prisoners commit heinous crimes. And we know that even in the case of those accused of heinous crimes, the accused criminal, despite the nature of the allegations against him, walks free. Given the Department of Justice figures on recidivism, there’s a good chance that he walks free to commit another crime. Possibly murder. Possibly rape.

The White House is looking for support now to follow legislation that gives the president more latitude in transferring Guantanamo prisoners, even as figures from Guantanamo prisoners released overseas show significant rates of recidivism. As a result of the impending Senate vote, Americans are once again struggling with how to respond to the potential release of violent criminals who risk returning to their former ways. Now, the new violent crime problem we’re struggling with isn’t murder or rape. It’s terrorism, and how to deal with terrorists held for a decade or more at the Guantanamo detention facility.

Twelve years into a war on terror that I witnessed at senior levels of the FBI and the CIA, we are struggling to accept the same cost of freedom for terrorists that we pay every day when we try, incarcerate, and release violent criminals. Hundreds of thousands of prisoners go free in America every year, either because the state can’t prove charges against them or because they’ve done their time. By contrast, think about the following statistics for Guantanamo prisoners: there at 164 of them, held at an estimated cost of $2.7 million per year per detainee. A drop in the bucket compared to the number of violent offenders running America’s streets now who are at risk of recidivism that will destroy thousands of American families.

And recidivism among those in this special category of terrorist crime? The most recent U.S. Government statistics from the Office of the Director of National Intelligence confirm about 16 percent return to terrorism, with about 12 percent suspected of returning to terror. Note that the standards we use to judge whether a terrorist has returned to his old life aren’t iron-clad; some studies say the U.S. Government numbers are inflated. Maybe so, maybe not. But before you judge these figures in isolation and declare them unacceptable, compare them quickly to the rates of recidivism we see for other nasty crimes. Typically, though, we consider terrorism as somehow unique, and Americans who have no idea how much risk they live with every day, as a result of recidivist rapists and murderers, look at recidivism numbers for terrorists in isolation and judge the as somehow unacceptable or unusual. They’re not.

That’s not the worst of it. We’re paying so much money for Guantanamo partly because we have lawmakers who insist that we continue holding these dangerous prisoners in Cuba, at one of the world’s most secure detention facilities. Here’s one reason we shouldn’t worry: we have highly secure facilities on U.S. soil (such as Supermax, in Florence, Colorado) that hold appallingly violent individuals who have the potential to pose a great risk to society. Why are we so fearful of holding Guantanamo detainees in those same facilities? They already hold al-Qaida terrorists, after all, along with other murderers who would wreak havoc if they ever found their way back to American streets.

More broadly, why are we afraid of terrorists at all in our court system? We’ve accepted that violence in our society, including murder, occurs every day when the rule of law requires that we release a prisoner when we think he’s guilty but can’t prove it. Why are terrorists some sort of special version of violent criminals? After all, terrorism is a federal crime that we’ve prosecuted successfully many times.

Our judgments about foreign countries’ treatment of terrorists also are colored by this same odd standard of viewing recidivism among terrorists as somehow different than recidivism we deal with every day elsewhere in the criminal justice system. Our acceptance of the risk posed by these other criminals is so ingrained in our culture that it’s never the subject of conversation or debate in America. It’s part of who we are: American values tell us that living in the land of the free and the home of the brave entails risk. So recidivism among terrorists released by other countries might look high when judged in isolation; it seems less so when compared with our own recidivism problem in this country. Similarly, our arguments that other countries often fail to rehabilitate released terrorist prisoners make sense, unless we accept that our own record of rehabilitation for violent criminals is nowhere near perfect.

If the standard we live by in this next round of the Guantanamo debate is that we can’t stomach recidivism among terrorists—who are, after all, violent criminals—the debate should be short: keep Guantanamo open. If the standard we live by matches that which we apply a million times a year across America in other instances of violent crime, the decision is equally simple: apply the rule of law. And accept the consequences.

Philip Mudd was Deputy Director of the CIA’s Counterterrorist Center and Senior Intelligence Adviser at the FBI. He is now Director of Global Risk at SouthernSun Asset Management.