Why not let Guantanamo prisoners go?
Why not just let them go?
The fear that detainees at Guantanamo or Afghanistan might “return to the battlefield” if released remains an ongoing feature of debates about U.S. detention policy. The concern isn’t entirely frivolous: Some former detainees have taken up arms against the United States after gaining their freedom. But here’s my heretical thought: So what? Or, more precisely: Isn’t it time to recognize that the dangers associated with releasing detainees might be outweighed by the dangers of continuing to hold them?
Under the law of war, states can detain enemy combatants as prisoners of war for the duration of the conflict, to keep them off the battlefield. But historically, many states – including the U.S. – have engaged in routine prisoner exchanges during armed conflicts, freeing enemy prisoners in exchange for the return of our own prisoners. The long-standing practice of prisoner exchanges implies something we often seem to forget these days: Sometimes, letting bad guys go is more useful than hanging on to them.
We’re reaching that point in Afghanistan. Last week, U.S. authorities formally transferred control of Afghanistan’s Parwan detention facility to the government of Afghanistan. The transfer of the facility, which holds some 4,000 people, had been delayed due to U.S. fears that Afghan authorities would release many of the detainees – who would end up “returning to the battlefield.” But as a U.S. official told The New York Times, there’s “a shift that’s going on in how the U.S. is looking at what’s important. . . . We have to look at the larger picture: What’s the U.S. strategic interest here?”
Right. What’s better for the United States after a dozen years of war, and with plans for a large-scale troop withdrawal in 2014: holding on to every last Taliban detainee “just in case,” or letting the Afghans figure out what to do with the detainees?
Whether the U.S. effort in Afghanistan succeeds surely does not depend on whether a few thousand Taliban detainees return to being Taliban fighters. No one knows for sure how many fighters the Taliban has, but estimates range from 25,000 to 40,000. Arrayed against roughly 350,000 members of the Afghan National Security Forces, it’s hard to imagine that tossing a few thousand Taliban fighters into the mix will be a decisive factor, even in the unlikely event that Afghan authorities engage in a wholesale prisoner release.
In part, this is because Taliban fighters appear to be a renewable resource: The Taliban seem quite effective in recruiting young men to serve as cannon fodder. And the continued detention of thousands of Afghans by the United States plays a role in ensuring a steady stream of Taliban recruits.
That role is impossible to quantify, but difficult to doubt: Afghan President Hamid Karzai has frequently made clear how bitterly his government resented U.S. control over Parwan. Perhaps more tellingly, ordinary Afghans express striking ambivalence about the presence of international forces.
It’s impossible to determine the degree to which fear and resentment of U.S. detention policies drives Taliban recruiting efforts, but it is likely part of that picture.
We thus have to weigh the potential costs associated with releasing Afghan prisoners against the potential costs of not releasing them. These costs include the distinct possibility that our continued detention of thousands of Afghans could inspire just as many new Taliban recruits.
This logic seems to have finally won out, as evidenced by last week’s transfer of authority for the Parwan detention facility.
But the fear of recidivism hasn’t fully receded: According to the Times, the long impasse over Parwan was resolved only when U.S. officials received “private assurances” that Afghanistan would continue to detain those prisoners viewed as most dangerous by the United States.
“As of today, we don’t have prisoners,” Secretary of State John Kerry said last week. “Whatever is occurring here is under the control of the Afghan people.” But Kerry forgot to mention that we didn’t turn all detainees over to the Afghans: The Washington Post reports that even with the nominal transfer of Parwan to Afghan control, the United States continues to detain several dozen Afghan nationals deemed to pose “enduring security threats,” along with a similar number of non-Afghan detainees.
What will we do with the hundred or so Parwan detainees we’re not willing to hand over to the Afghans? No one knows – any more than anyone knows what we’ll do with the more than 150 men who remain in detention at Guantanamo.
It’s hard to pin down the precise numbers, identities or status of men held at Guantanamo, but they are divided into at least three general categories. First, there is a small number of detainees held pending military commission trials. Second, there are several dozen who have been “cleared for transfer” or release, but who languish at Guantanamo either because no country is willing to accept them or because the U.S. is not satisfied that detainees won’t “return to the fight.” Finally, there are several dozen who are being held indefinitely, on the grounds that “evidentiary problems” (read: past torture or anxiety about revealing intelligence sources and methods) make it impossible for them to be put on trial, but they’re just “too dangerous” to release.
Who would ‘rejoin the fight’?
But fears about detainee recidivism are overblown. For one thing, most previously released Guantánamo detainees have not “returned to the battlefield” – and of those who have, few appear to have posed a direct or severe threat to the United States.
If we were to think rationally about closing Guantanamo, we would evaluate several factors with regard to potential detainee releases. First, we’d ask how likely it is that a detainee would seek to “rejoin the fight.” Second, we’d ask what level of hazard would likely be posed by recidivism: Would we simply have created another low-level Taliban or al-Qaida operative, or do we believe a detainee would be in a position to cause truly grave harm to the United States? Third, we’d ask whether we can mitigate any risk of harm. Fourth, we’d ask tough questions about the dangers of holding detainees indefinitely.
Perhaps even more than in the Afghan context, we should weigh the dangers of releasing detainees against the long-term threat posed by our own detention policies. There’s ample reason to believe that U.S. detention policies have incited anti-American sentiment around the globe.
Our government seems generally averse to engaging in the serious cost-benefit analysis of our detention policies I have suggested, but there is another potential basis for reconsidering our collective fear that released detainees will return to the battlefield: We have the ability to significantly mitigate the risk posed by released detainees. We can, for instance, closely monitor released detainees, using a wide range of surveillance technologies.
We can also dramatically reduce the likelihood that a released detainee will be welcomed back into the fold by his former comrades. The credibility of released detainees is already low; their former colleagues assume they’ve been compromised. We can make their credibility lower still.
$10,000 and a passport
So here’s my idea: Have CIA Director John Brennan fly down to Guantanamo with a retinue of news media. As the cameras roll, Brennan should hand every last Guantanamo detainee a U.S. passport and $10,000. (For Khalid Sheik Mohammed, and other high-value detainees, double or triple that figure.) Brennan should hug the detainees, apologize for the inconvenience caused by 10 years in detention, and thank them profusely for everything they’ve done to help the United States eliminate al-Qaida and its associates.
And then – we should let them go wherever they want. Yemen? Pakistan? Sure, we’ll fly them there first class (and monitor every breath they take, every step they take, every call they make, and so on – wouldn’t it be useful to see who they contact?).
With a send-off like that, we can be pretty sure of one thing. Some detainees may want to return to the battlefield, but the battlefield won’t be wanting them back.
(Rosa Brooks is a law professor at Georgetown University. She served as a counselor to the U.S. undersecretary of defense for policy from 2009 to 2011 and previously served as a State Department senior adviser.)