Let Them Go
By Rosa Brooks
The fear that detainees at Guantánamo 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 of the week: So what? Or, more precisely: Isn’t it time to recognize that the dangers associated with releasing detainees might be outweighed by the dangers associated with continuing to hold them?
Under the law of war, states can detain enemy combatants as prisoners of war for the duration of the conflict, in order to keep them off the battlefield. But historically, many states — including the United States — have engaged in routine prisoner exchanges during armed conflicts, freeing enemy prisoners in exchange for the return of our own prisoners. (During World War II, we even exchanged some POWs with the Nazis). The long-standing practice of prisoner exchanges implies something we often seem to forget these days: Sometimes, letting bad guys go is much more useful than hanging on to them.
We’re reaching that point in the Afghanistan conflict. On Monday, U.S. military 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 detained by coalition forces during a decade of war, had been delayed and delayed again due to U.S. fears that Afghan authorities would simply release many of the detainees — who would end up “returning to the battlefield.” But as an unnamed 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 — even if it means that some are released and rejoin the Taliban?
Whether the U.S. effort in Afghanistan succeeds or fails 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 in the first place, but estimates range from 25,000 to 40,000. Arrayed against roughly 350,000 members of the Afghan National Security Forces (not to mention the remaining U.S. troops), it’s hard to imagine that tossing a few thousand Taliban fighters back 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: With or without detainees released from Parwan or other facilities, the Taliban seem quite effective in recruiting new young men to serve as cannon fodder. (Most will occupy only low-level roles, and most will not live long.) 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 — our putative partner against the Taliban — resented U.S. control over Parwan. Perhaps more tellingly, ordinary Afghans express striking ambivalence about the presence of international forces: Two years running, for instance, three-quarters of Afghans surveyed by the Asia Foundation say they have “some” or “a lot” of fear about encountering international forces.
It’s impossible to determine the degree to which fear and resentment of U.S. detention policies drives Taliban recruiting efforts; night raids, air strikes, frightening checkpoint encounters, and the U.S. role in enabling Karzai’s corrupt government undoubtedly also play a role in inspiring armed resistance to what many Afghans view as foreign occupation. But it seems reasonable to assume that Afghan unhappiness with U.S. detention policy is part of that picture.
We thus have to weigh the potential costs associated with releasing Afghan prisoners — some of whom will likely “return to the battlefield” — 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 this week’s transfer of authority for the Parwan detention facility to the Afghans. But the fear of recidivism hasn’t fully receded: According to the New York 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 on Monday. “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 (from Yemen, Pakistan, and elsewhere).
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 Guantánamo.
As with the remaining Parwan detainees, it’s hard to pin down the precise numbers, identities, or status of men still held at Guantánamo, 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 detainees who have been “cleared for transfer” or release, but who continue to languish at Guantánamo either because no country, including the United States, is willing to accept them inside its borders, or because the United States is not satisfied that — you guessed it — detainees won’t “return to the fight” if transferred, say, to Yemen. Finally, there are several dozen detainees who are being held indefinitely, on the grounds that “evidentiary problems” (read: past torture and/or U.S. 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.
Just as in the Afghan context, however, fears about detainee recidivism are almost certainly 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. In a 2011 analysis, for instance, Peter Bergen, Katherine Tiedmann, and Andrew Lebovich found that U.S. government claims about Guantánamo recidivism rates often lumped together anti-U.S. activities with militant activities not directed at the United States.
As a result, they argue, the true rate of anti-U.S. recidivism was probably one-in-seventeen, not one-in-four as claimed at the time by U.S. government sources. And Bergen and his colleagues don’t differentiate between abstract “dangerousness” of post-Guantánamo activities and actual harm caused by recidivist detainees — solid information is impossible to obtain, but logically, not all the former detainees who seek to harm the United States will in fact achieve their goals. (Bergen and company do note, dryly, that the Guantánamo recidivism rate looks, by any measure, a whole lot better than the recidivism rate for criminals incarcerated in U.S. prisons: One U.S. study found that nearly two-thirds of released prisoners were ultimately rearrested.)
If we were to think rationally about closing Guantánamo — I know, not likely — 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” in one way or another. Second, we’d ask what level of hazard would likely be posed by recidivism: Would we simply have created yet another low-level Taliban or al Qaeda operative, or do we believe a detainee, if released, 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 (more on this in a moment). And fourth, we’d ask ourselves some tough questions about the dangers of holding onto detainees indefinitely.
Here again, perhaps even more than in the Afghan context, we should weigh the potential dangers of releasing detainees against the potential long-term threat posed to the United States by our own detention policies. As in Afghanistan, it’s hard to entirely unravel overseas anger at U.S. detention policy from anger at other U.S. policies: globally, these likely include U.S. drone strikes, past interrogation policy, or other issues. Nonetheless, 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 here. (It seems similarly averse to engaging in such a cost-benefit analysis of targeted killings.) Congress and the executive branch share the blame for this, but we shouldn’t be terribly surprised: For a nation that prides itself on hard-headed capitalist realism, we Americans often seem wholly unable to conduct the most basic risk assessments. In other words: We’re routinely irrational when it comes to risk perception.
There’s a vast literature on risk perception and risk management. In theory, people should compare risks by evaluating both the probability of a negative event and the potential magnitude of its consequences. In practice, people have trouble accurately assessing either probabilities or consequences: we are often overly influenced by the perceived novelty of dangers, for instance. Similarly, we tend to be less troubled by risks that we believe we can control: Thus, we worry more about plane crashes (low probability, but once you’re buckled into your miserable coach class seat, you have zero control) than car crashes (high probability, but if you’re at the wheel, you’re likely to place excessive faith in your ability to avoid dangers).
This suggests, however, another potential basis for reconsidering our collective fear that released detainees will return to the battlefield. Although we tend to overlook it, we have the ability to significantly control and mitigate the risk posed by released detainees. For one thing, we have the ability to closely monitor released detainees, using a wide range of surveillance technologies — thus drastically reducing the likelihood of nasty surprises.
We also have the ability to 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, since their former colleagues are apt to assume they’ve been compromised. We can make their credibility lower still.
So here’s my idea: Have CIA Director John Brennan fly down to Guantánamo with a retinue of news media from all over the world. As the cameras roll, Brennan should hand every last Guantánamo detainee a U.S. passport and ten thousand bucks. (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 Qaeda 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