And the public will instinctually worry about recidivism - "the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior." If the people at Guantanamo were treated like terrorists, will they now become terrorists? It's inside the definition of recidivism. Innocents treated like those guilty can become guilty. And the actually guilty can return to what they used to do.
Preserving state secrecy will be of no help to Obama here. Shutting out sunlight doesn't make things easier. As Worthington writes, and quotes, Binyam Mohamed believes in the law apparently more than our Bush era officials did:
"Warming to his theme, as Col. Kohlmann 'was staring into the headlights of
Binyam’s speech and could see no way to cut him off,' he [Binyam
'When are you going to stop this? This is not the way to deal with this
issue. That is why I don’t want to call this place a courtroom, because I don’t
think it is a courtroom.
I am sure you wouldn’t agree with it, because if you was arrested
somewhere in Arabia and Bin Laden says, “You know what, you are my enemy but I
am going to force you to have a lawyer and I give you some bearded turban
person,” I don’t think you will agree with that. Forget the rules, regulations
and crap … you wouldn’t deal with that. That is where we are. This is a bad
place. You are in charge of it.'
Stafford Smith then proceeded to explain:
'It was an extraordinary lecture. Binyam finally came to a firm
conclusion. “I am done. You can stop looking at the watch,” he said. He then
turned away from Kohlmann, as if to ignore any response. He was holding up his
sign, "CON-MISSION," and waving it to the journalists behind him, just in case
they had missed it the first time.'"
As some Obama officials contemplate the possibility of new "national security courts" and deal with a legacy of evidence gained by torture, they may want to consider social science, and work hard to make public and perfect an understanding of what recidivism means when the crime is terrorism. They may want to ask themselves if it would be better to deal with terrorists in ONE legal language that we can all understand - simply the criminal justice system. They need to present the world with an understanding of how terrorism functions that is realistic and tactical - not fear-based. Take this quote from Ron Suskind's "The One Percent Doctrine" for example:
"'What we understood inside CIA is that al Qaeda just doesn't act out of
bloodlust, or pathological rage. Though their tactics are horrific,
they're not homicidal maniacs. They do what they do carry forward specific
strategic goals,' said a senior CIA official involved in highest-level debates
over bin Laden and Zawahiri during this period [2002-2004]." [p.304]
Jane Mayer in her recent article quotes newly appointed Principal Deputy Solicitor General Neal Kaytal. It begins with a quote from Kaytal:
“'What is needed is a serious plan to prosecute everyone we can in regular
courts, and a separate system to deal with the very small handful of cases in
which patently dangerous people cannot be tried.' This new system, he wrote,
would give the government the 'ability to temporarily detain a dangerous
individual,' including in situations where 'a criminal trial has failed.' There
are hundreds of legal variations that could be considered, he said. In 2007,
Katyal published a related essay, co-written with Jack L. Goldsmith, a
conservative Harvard Law School professor who served as the head of the Office
of Legal Counsel in the Bush Justice Department. The essay argued that
preventive detention, overseen by a congressionally authorized national-security
court, was necessary to insure the 'sensible' treatment of classified evidence,
and to protect secret 'sources and methods' of gathering intelligence. In his
Web post, Katyal wrote, 'I support such a security court.'”
Aside from the question of WTF Katyal is doing co-writing an article with Jack Goldsmith, you have to wonder, what the hell makes someone "patently dangerous" that cannot be proven in a court? If they are conspirators with other terrorists, that can be proven. Under the proposed Kaytal/Goldsmith system, "patently dangerous" is a category created by the executive branch, determined by the executive branch, and one from which you may not escape. It is Bush 2.0.
One of the details I find so significant about the Worthington quotes above is that Binyam Mohamed is waving to journalists - asking them to report his story. We don't do that enough here. Why do we let Obama hide behind the state secrets privilege in cases like Mohamed et al. v. Jeppesen? Why don't we ask as well exactly what happened?
It seems to me that you can let people out of Guantanamo with confidence if you bother to ask experienced social scientists what recidivism is (I mean, God, do you want Dick Cheney to be one of the few people with an authoritative voice on terrorist recidivism, and what that even means for our national security??). What can men in isolation for years really do upon returning home that could be so dangerous? If Obama does not cement the idea that the rule of law matters (as opposed to "safety and ignorance rule") then we will constantly return to a gray area, navigated only by our fears, where the little we know is enticing enough for us to trust the executive branch to make the important decisions (a branch often staffed by people less knowledgable on the law, and often less knowledgable on ethics, than our judicial system!). Sorry, that's not how I want it to be. We try people in the US court system, and there only. We enforce executive orders written to reign in abuses at places like Guantanamo (h/t Valtin).
So many aspects of our so-called "war on terror" - how to capture, how to detain, how to try - have been figured out over hundreds of years. Obama needs to bring this common knowledge to bear on our efforts to deal with people targeted for whatever reason (unfortunately, often racial) as terrorist suspects. I am not afraid of a free Binyam Mohamed, and I don't think Obama or the British are either. But if they don't make clear why they are not, and make the one process (the US criminal justice system) by which we learn to handle our fears clear and applicable to ALL, they will only feed into the imaginations of those in our nation who are consumed with fear and paranoia. They must increase the transparency of our trials of terrorists, and they must handle them inside the US Justice system ALONE. We undermine ourselves when we do not, and we unjustifiably, and criminally, ruin real lives.
Update: For an example of the fear argument I am referring to, go no further than Sean Hannity. Sure, what he says is pretty predictable, but people do watch this stuff on TV. Pres. Obama has gone on FOX before. He needs to be able to manage the crap that will come out of FOX with each prisoner release.