Guantanamo and Incapacitation

Last Thursday's Supreme Court ruling (Boumediene, http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf) that the doctrine of habeas corpus applies to the detainees at Guantanamo Bay is undoubtedly going to make it harder for our armed forces to fight the GWOT and for the justices on my side of the constitutional jurisprudence discussion to roll back the excesses of the Court over the last five decades. Read Justice Scalia's dissenting opinion for a brilliant critique of the Majority's reasoning - and also a novel history of radical Islamic terrorism against Americans. (Not to spoil it, but he begins with Hizballah in 1982 instead of Al Qaeda in 1998 or 2001. A much better starting point.)

However, I'd like to at least make the argument that the real losers in this case are not our terrorist-fighters, but the detainees themselves. The biggest and best reason from a strategic perspective to keep them at Guantanamo, regardless of what anybody says, was to milk them dry of useful intelligence on global terrorist networks and personalities. Hence the interrogations that we hear so much about that involve all these horrible things like dunking people in pools and whatnot. The thing is, with most of them being at least 6 years on in their stay, they are out of actionable intelligence for us - anything they know is stale and probably completely outdated, since their host nations look radically different these days.

Now the only good reason to hold onto the detainees is the very practical one articulated by the administration in Hamdi, Hamdan, and now Boumediene: keeping them there so they can't go back home and pick up AK-47s and IEDs and get back to work. This is a very popular rationale these days for any type of incarceration: we call it incapacitation. If we keep them in prison, they can't be out there causing mischief. The incapacitation justification for punishment is the single biggest reason for our overcrowded prison systems here in the U.S. Keeping criminals off the streets does seem to work in a twisted sort of way - crime goes down because everybody who tends to commit it is forgotten in the pen, living off the government dole at about $30,000 a year. I have serious reservations about our penal system and its predominant justifications, mostly because of how dehumanizing prolonged incarceration is and the dead weight loss it imposes on the economy. Better solutions are for a longer later post.

But the critical point I wish to make here is that incapacitation is sometimes better than the alternative, which in this case is going back to the home country. Look at the Uighur Muslims, for example: a persecuted radical minority from Western China, some of whom we snapped up in Afghanistan learning useful lessons in antistate guerilla action (read: terrorism) from Al Qaeda. Now, supposing that some of them were simply tourists at the time and we send these guys back to China. Immediately they will get to join our Christian brothers and sisters in state detention facilities for their dissenting activities, or possibly get to donate their organs to foreign medical tourists, and eventually their bodies to Bodies, The Exhibition. Or they could stay in the island of Che Guevara, the People's Paradise of Cuba, getting free food and decent lodging while they wait for us to find them a more hospitable home - not in China but also not in our backyard.