(Cross-posted on Tumblr, Jan. 15, 2015)
It was announced this week that a number of Republicans, Senator McCain prominent among them, are seeking to pass legislation to prohibit further releases. The Paris attack last week is being used as a pretext. The specter of detainees “returning to the battlefield” and engaging in new acts of terrorism is the primary argument.
It was announced just today that five more detainees were released from Guantanamo Bay, some 6 years after they were cleared for release by an inter-agency review, and as much as 13 years after they were initially detained. The majority of detainees still at Guantanamo Bay are not terrorists affiliated with al-Qaeda or any other terrorist organization, and of course have not been charged with any crime. But Republicans want to ensure their continued and indefinite detention.
A recent article by Cliff Sloan, the White House official until recently responsible for detainee transfers, indicates that under the new review system less than 7% of detainees have returned to any form of insurgent or terrorist activity. He argues that such a low number does not justify continuing to detain all of those cleared for release. But even if the number were higher, consider the morality of this.
The basic argument of those opposing release is this: even if these people were wrongfully detained, in that they were not affiliated with al-Qaeda or “associated forces”, and there is no evidence that they had ever committed or intended to commit terrorist acts – the problem is that now they are a risk. They are a risk, so the argument goes, because they have been wrongfully detained, and some of them tortured, and held alongside true terrorists and insurgents. So even if they intended the U.S. no harm before, chances are they will want to cause the U.S. harm now.
The moral question, however, is who created the risk, and who should bear it? If the U.S. created the risk by detaining and mistreating (even torturing) innocent people, how can it be possibly ethical or moral to add to the injury and injustice by continuing to detain the innocent? Particularly when the risk is just that – speculative in terms of both probability and magnitude?
Americans visit the certain and grave injury and injustice of continued detention of these men – denial of liberty not only without the slightest due process of law, but of those actually acknowledged to be innocent – in order to avoid an unquantified and uncertain risk of their taking action against the U.S., when Americans were responsible for creating that risk in the first place, by their own wrongful conduct to boot.
This is unconscionable. It is outrageous. It flies in the face of so many of the values that Americans like to tell themselves lie at the core of their national identity and their own personal character. If the Paris attacks have anything to say about this, it is that the ongoing injustice of detaining the innocent at Guantanamo Bay will continue to outrage, inflame, and inspire attacks, not that the U.S. should double down on the injustice for fear repatriated detainees join the struggle.