David Remes Responds

I received the following note today from Guantanamo lawyer David Remes in response to my post from Friday on recidivism:

Ben raises important questions in his “Thinking about Recidivism” post, but to put the discussion in context, I must point out that it’s not been solidly documented that recidivism is a widespread problem, much less a problem of the magnitude suggested by the recent DNI report. It’s impossible to evaluate DNI’s claim that 25 percent of all transferred detainees have reengaged or are suspected of having reengaged in “terrorist or insurgent activities,” because the summary does not identify the detainees involved, specify what the particular detainee is alleged to have done, or provide supporting evidence. It’s unreasonable to ask that we simply accept DNI’s claim. From the Guantánamo habeas cases to the intelligence failures and blunders we read about almost every day, we know the Intelligence Community often relies on faulty or worthless evidence, or simply makes evidence up. The burden is on the Intelligence Community to prove its claims. The DNI’s 25 percent recidivism claim is also misleading. For one thing, the claim reflects an assessment of “insurgency” risk, which goes beyond what Congress asked for - namely, “an assessment of the likelihood that such detainees will engage in terrorism or communicate with persons in terrorist organizations." The 25 percent figure is also misleading because the assessment Congress asked for lumps together the risk of terrorism and the risk of communicating with persons in terrorist organizations. Combining those risks might make sense if “communicating” meant conspiring to engage in terrorist activity. Congress, however, does not even specify that the detainee must know that the person with whom he’s communicating is in a terrorist organization. In this same vein, Ben is right, and his examples prove, that an omnibus “recidivism” number is unhelpful because not all recidivism is equally problematic. I also must respond to Ben's claim that the human rights community favors the liberty of detainees over the lives of civilians. This is a straw man. Ben asks: “If someone is probably–but not certainly–a combatant and thus lawfully detainable and he may well–but will not certainly–kill civilians at some point following his release, how do we value his liberty interests against civilian lives?” Putting aside the meaning of "combatant," a legal term, Ben’s question falters because, as far as I know, no one argues that a person who is lawfully detainable has any liberty interests. The person’s liberty interests come into play in determining whether the person is lawfully detainable. (A person also has a liberty interest in having the lawfulness of his detention continually reviewed.) The human rights community favors the right not to be unlawfully detained over unlawful detention. What’s “dishonest” or “shameful” about that?

David makes some good points here. His last, however, requires a response. David disputes my claim that the human rights community has demanded the release of people who are lawfully detainable or regards detention as a human rights bad and releases as a good. Separately, Gabor Rona of Human Rights First describes this claim as "a demonstrably false characterization of what the 'human rights community' stands for" and cites several statements in which human rights groups acknowledge some role for detention. My point was not about whether human rights groups acknowledge some role for detention in general. It was about releases from Guantanamo and the way human rights groups analyze them. Unfortunately, the human rights group's positions on this subject have been nothing but clear. I don't consider it even an arguable point: With isolated exceptions, the human rights community has been unanimous in demanding the closure of Guantanamo--and in opposing non-criminal detention of those whom the government cannot put on trial. Consider Human Rights First's blueprint for the closure of Guantanamo, which proposed that the new administration in its first year in office "initiate federal court prosecutions of detainees suspected of having committed crimes against the United States," "complete transfers to prosecution, repatriation and resettlement of the remaining detainees" and "manage the risk posed by repatriation." Human Rights First didn't say "most of the remaining detainees" or "some of the remaining detainees." And critically, it said nothing about continuing detention for those for whom detention was a lawful option. Or consider Human Rights Watch's recommendations for the new administration, which urged the incoming administration to "Repatriate all detainees who are not slated for trial and can safely be returned home" and to "negotiate resettlement agreements with other countries, and accept some detainees for resettlement into the United States" to handle those who could not go home. It too said nothing about detention for those for whom it presented a lawful option. Or consider Amnesty International's ongoing calls "for any Guantánamo detainee whom the USA intends to prosecute to be promptly charged and brought to criminal trial before an independent and impartial court under procedures that meet international fair trial standards. Any detainee the USA does not intend to prosecute should be immediately released." The major human rights groups have nearly all directly or indirectly called for the release of detainees who cannot be convicted, and they have pointedly and intentionally not excluded those whose detentions are lawful pursuant to the laws of war or the AUMF. Nor am I aware of a single incident in which a human rights group, faced with a government decision to release a combatant, has raised questions about that decision on grounds that it may endanger civilians. And these two points form the core of my critique: The human rights community evaluates only the human-rights costs of detention and only the human-rights benefits of releases. With such a formula, no wonder the policy scales tip so decisively.