Before we obsess too much about a Washington Post article, we should read the damn thing. Here’s the problem Obama inherited:
Three months into the Justice Department’s reviews, several officials involved said they have found themselves agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees cannot be charged or released.
They cannot be charged because they were tortured. They (presumably) cannot be released because there is too great a likelihood that they will, upon release, kill Americans. (maybe because they were tortured?) Maybe some of them truly are bad guys, but Bush made it impossible to prosecute them because he tortured them. For example:
Tawfiq bin Attash, who is accused of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official. Little information on bin Attash’s case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify. Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.
Here’s the fine line the Obama Administration is trying to walk:
“The challenge for the new administration is how to solve these legal questions of preventive detention in a way that is consistent with the Constitution, legitimate in the eyes of the world and doesn’t create security loopholes that cause Congress to worry,” Zarate said.
And that’s a tough line. Indefinite detention runs counter to U.S. and International law. The real hard fact of the matter is, it is likely that, under the law, these 90 people will have to be released. If they are as bad as the Administration believes, they will likely try to kill again. And we must be prepared for that.
Now, for the Ethics Question:
Is it ethical to release from custody someone who has an extremely high likelihood that he/she will try to kill people?
Is it ethical to imprison someone without charges or trial based solely on the belief that he/she will try to kill people?
Right now, we’re talking about only 90 people. The risk to society for the second option is that any government with such powers will imprison anyone who opposes the government (witness Iran right now).
The risk to society for the first option is that some, or all, of these 90 people will kill others.
I propose the first option, with this observation. The price of the Rule of Law is not cheap. It is said we would rather 10 guilty persons go free than imprison one innocent person. That said, I believe one of the prices we have to bear for the misdeeds of the Bush Administration is the cost of continual survelliance of these 90 individuals upon their release. It won’t be easy. It won’t be fool proof. But, in the balance of things, it will be ethical.