One of the concepts we pay a lot of lip service to is the notion of blind justice. Justice applies the law equally to all persons regardless of their identities. Rich man, poor man, powerful man, powerless man—in our ideals, all are treated equally by the law. But our adherence to our ideals is seldom strong; we are all too quick to set our ideals aside.
The case in point is the current discussion over the news report that one of the released Guantanamo detainees has now appeared in a leadership position at al Qaeda. We didn’t have enough evidence against him, we released him, and now he’s actively working against us. Oops. This is not good. Should not we have detained him indefinitely?
Ah, but isn’t justice blind? If we truly believe that justice is blind, then we should argue the law and the evidence, not the individual. The law and the evidence are clear: there was no basis for holding him. Releasing him was the right thing to do, even though there was a risk of him returning to undesirable behavior.
We all recognize that justice is imperfect, that mistakes will be made. So we attempt to specify the amount of risk we are willing to take with the old saw that we would rather let a hundred guilty men go free than convict one innocent man. OK, we can argue about the exact value—should it be 50, or 20, or 10? But we all agree that, whatever number we choose, it must be a lot bigger than one.
But not in the case of foreigners. When it comes to foreigners, American justice is not blind; it actively discriminates against foreigners. If you’re an American citizen, then we apply the 100 to 1 rule to you. But if you’re a foreign Muslim, then that figure is more like 1 to 100. We’d rather incarcerate 100 innocent foreign Muslims than release 1 guilty foreign Muslim. You think I exaggerate? Look at the numbers. We’ve released about 500 prisoners from Guantanamo. Of those, the Department of Defense claims that some 60 have “returned to terrorist activities”. Their definition of “returning to terrorist activity” includes “having your lawyer write a letter of protest”, because that’s the basis on which one person has been so categorized. In terms of actually participating in violent activity, there are only two cases that have been publicly announced, and perhaps five cases that have been mentioned. These numbers are squirrelly; they seem to change every month, so I won’t attempt to document them. Whatever the real numbers are, they’re obviously tiny. So I think it fair to say that, in actual practice, our “guilty to innocent” ratio for detaining foreign Muslims is about 1 to 100, the exact reverse of our ratio for American citizens.
The best way to expose the ugliness of hypocrisy is to demand that it be made explicit. OK, if we’re going to use 100:1 for Americans and 1:100 for foreign Muslims, what ratio should we use for American Muslims? Do they still get the 100:1 ratio? What if they’re not American citizens but they are legal immigrants? Does that confer better odds on them? What about Africans? Do we make a distinction between Nigerian Muslims and Nigerian Christians? Does the fact that they’re Christian mean they should get, say, 1:1 odds? And what about Germans? Surely they deserve something better than foreign Muslims—but maybe not the full 100:1 that we grant American citizens. Perhaps we should use 80:1 when we’re dealing with Germans. And Russians? Well, they’re not as good as Germans—let’s give them only 50:1.
So let’s at least be honest about this. If we don’t want to apply the same standards to foreigners as we apply to American citizens, we should at least figure out a table of standards for different nationalities. We should also include adjustments for religion, language, and gender (men are more dangerous than women). While we’re at it, we should probably add an adjustment for race, too.
If you find this all rather tedious, I can suggest a much simpler solution: “All men are created equal…“ What a concept!
13 comments:
"The case in point is the current discussion over the news report that one of the released Guantanamo detainees has now appeared in a leadership position at al Qaeda. We didn’t have enough evidence against him, we released him, and now he’s actively working against us. Oops. This is not good. Should not we have detained him indefinitely?"
Veering off the main topic before, I have another reason why he should be released.
This is the equivalent of if we incarcerated someone for murder, but had no evidence of murder. Then he goes out and kills someone after he's released. That doesn't mean he's guilty of the crime he was arrested for.
Yes!
I note that in the text of the fifth amendment it says "No person shall..." and then lists various protections. It doesn't say that you have to be a citizen or held in the US. It is a clear guide to how we Americans are supposed to conduct our judicial process. (On the other hand I'm not sure how that intersects with the prosecution of war against *people* in a foreign land.)
Also, so maybe the numbers are like 1:100 now. Now! How many of those six or so terrorists are newly minted by us? Maybe four? I know I'd be pretty displeased about unwarranted imprisonment if I were the victim.
You ask tough questions. Too tough: we would never acknowledge what in fact we do by actually putting it down on paper.
So the hypocrisy continues (and most people, unlike you, have no idea it's actually going on).
An interesting additional followup: I checked and recidivism rates in America run between 20% and 50%, depending upon your definition of recidivism. Now, the largest count that the DoD has released for "terrorist recidivism" is 61 recidivists. That's a 12% recidivism rate. Compare that with the figures for American criminals. It seems that Islamic terrorists are less dangerous that American criminals.
How do we even know the ratio is 100:1 for Americans? I've heard the U.S. has a larger pecentage of its population behind bars than any other country. Maybe the government has just criminalized too much. Even so, I suspect there might be some institutional impetus toward railroading people into prison, with a focus on winning convictions over justice. Many prosecutors ride their way into high political office based on their "record", so a person behind bars (anyone will do) is just another feather in their cap.
And that's not even taking into account the federal funds doled out to police departments for fighting the "war on drugs". The incentives are not in favor of the innocent being exonerated.
Good on Obama for closing Gitmo. Too bad he just had a predator drone kill a bunch of people who lived in huts in Pakistan, reportedly including 3 children. Doesn't the president know that someone loved those children as much as he loves his daughters?
How do we even know the ratio is 100:1 for Americans?
We don't know at all. There are no reliable statistics for any of this. The 100:1 ratio is an old saw representing our ideals, not a measured value. I'm using the numbers only to illustrate the prejudices we live with.
It seems that Islamic terrorists are less dangerous that American criminals.
Chris, what kind of activities are we talking about when we talk about the American recidivism rates? Islamic terrorists, whether or not they have a higher recidivism rate, have a higher potential of harm per recidivism-percentage. A relapsing terrorist works in a terror cell whose goal is mass casualties. Even American felons generally are not looking to incur such heavy casualties. Also, I don't even know if your recidivism rate for American criminals is for felons, or for other kinds of criminals. It seems that we should be talking about relapsing murderers/heavy-robbers/gangsters, rather than people who are not looking to inflict casualties.
The recidivism rates I quoted are all for felons. They are highest for drug-related offenses. But I'm not certain about your assertion that a single recidivist terrorist does more damage than a single criminal recidivist. This would certainly be true in the worst case, such as the fellow who now helps lead al-Qaeda in Somalia. But the terrorist recidivist who goes home and tells his family and friends what monsters the Americans are (and that's one of the definitions the military has used for "recidivism") doesn't do any damage at all.
This discussion of recidivism can easily lose itself in the details, so let me just return to the basic point: releasing 500 detainees at Guantanamo poses roughly the same level of risk to Americans that releasing 500 felons from American prisons. Whether it's somewhat more or somewhat less, we can't say. But I do think it fair to assert that the imposed risk is in the same ballpark.
But the terrorist recidivist who goes home and tells his family and friends what monsters the Americans are (and that's one of the definitions the military has used for "recidivism") doesn't do any damage at all.
I was not aware of this. In that case I would have to withdraw my "more dangerous" remark.
Maybe it's fair to say they're roughly equivalent, but I can't be sure about that. The fact is, Al-Qaeda (and other networks) are for all intents and purposes, wartime enemies of the United States, as opposed to felons. This makes me have to think about the definitions some.
What we would need is a reliable metric for recidivism into activities that actually pose a material threat to the United States, and compare that with those of felons. What I think we'd ultimately need (though might not be able to have, I distrust mathematical models like most average post-financial-collapse cynics) is a way to quantitatively compare the dangers in releasing unlawful detainees to the credibility/image cost of keeping them behind bars. At the same time, calculating it like this still makes for some serious ethical problems.
Maybe we have different views on handling Al-Qaeda on a more fundamental level. It seems (correct me if I'm wrong) that you see Al-Qaeda as an issue with regards to crime, whereas I see Al-Qaeda as an issue with regards to war.
It seems (correct me if I'm wrong) that you see Al-Qaeda as an issue with regards to crime, whereas I see Al-Qaeda as an issue with regards to war.
And therein lies one of the most difficult problems we face with terrorism -- it's neither war nor crime. We attempt to apply our war model and it doesn't work. We attempt apply our crime model and it doesn't work. Each model works just enough to be plausible, but not well enough to yield acceptable results. I'm going to give this matter some thought and post something on it.
Has anyone tested what happens if you really spoil terrorists with education, entertainment, employment, security and good food?
I would think a lot of them could give up their grudges, at a much lower cost than killing them or convicting them. It would not really make sense to try bribing the terrorists to quit their terrorism. But an indirect enough bribe might actually disarm large portions of the terrorist networks fairly cheap.
Oskar,
The problem is that those who are not actually terrorists will still be incredibly angry that they've been taken away from society and completely isolated in a prison. No amount of TV will stop them from going back to their home country (presuming that they've been given a fair trial eventually) as angered foreigners who might then join a terror network.
I agree with Alex that we can't charm people we incarcerate. We can, of course, do less to infuriate them if we treat them with decency and fairness -- which has not happened. Had we handled Guantanamo properly, it would never have happened. The people in question, after being apprehended, would have been quickly investigated to determine if there were any reliable evidence of guilt, and many of them would then have been released with apologies. Those for whom evidence did exist would have been held at Bagram, tried, and sentenced. That would have been the end of that.
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