released

Andrew Sullivan reports:

"RELEASED WITHOUT CHARGE: The final four Brits in Guantanamo were immediately released by the British government upon returning to the UK. They are charging torture. No formal charges of terrorism have been brought against them. Either we should be deeply concerned that potential terrorists are now at large or that innocent men have been held without any due process for three years and, if they were not British, would still be in jail. Which is it?"

I think he asks a very interesting question but one that excludes the middle, as Aristotle would say. One would presume that a large number of Al Qaed members were in Afghanistan but that most had never gotten to the point where they had committed what would normally be called a crime, i.e., participating in a direct conspiracy to perform a specific terrorist act at a specific time and place. There must be a large number of detainees that they were members of al Qaeda and had therefore taken an oath to attack America, went through a training program to do that and fought with them in the war. Those actions are good reasons for the Americans to hold them even though none of those actions are explicitly crimes. Applying standards of criminal law to such persons would mean they were innocent.

But innocent does not mean not dangerous. Imagine that they had been let free soon after being picked up in Afghanistan but were subsequently involved in a terrorist act against the US. What would be our reaction? I can imagine us saying now, "Well, that is the price we pay for being a civilized world," but I can also imagine a government being in a great deal of trouble. After all, they had by their actions clearly conveyed in a general sense thier intention to do harm to the US. No government whose citizens having subsequently been attacked by such people would have a right to say they didn't see it coming.

I think there is a problem applying the legal paradigm to this problem. After all, I would imagine that many of the soldiers in the German or Japanese Armies never fired a shot in anger or directly participated in anything that they could be arrested for. My Uncle delivered mail in the Phillipines in WWII, not a crime against the Japanese but still part of the American War effort and still enough for any Japanese soldier that saw him to lawfully shoot him or take him prisoner. Maybe the problem is that we need to make joining certain types of organizations itself a crime?

The whole thrust of western civilization has been to move from treating people as members of collectives to treating them as individuals. This is surely an advance to the extent membership in these collectives were based on characteristics that a person can do nothing about, e.g., being of a certain race or nationality. But that may not be true for a collective one voluntarily joins. The reason you can shoot members of the opposing army without inquiring what they have done as individuals is that war is a clash of groups, not individuals. Asking what crimes these released members of Al Qaeda have committed seems to being applying the standards applied to individual activity through criminal law to the collective activity of war.

Michael Reinhard