A Threat That Belongs Behind Bars

NYT Op-Ed Contributor, By ERIC POSNER


WITH the recent suicides, reports that detainees have been abused, mounting foreign pressure to close the detention center, and its Gulag-like symbolic resonance, the continued political viability of the Guantánamo Bay camp is increasingly in doubt. President Bush has himself said that he would like to close Guantánamo. But is he putting politics before American security? If Guantánamo is shut down, what will be done with the detainees?

Critics argue that if the United States cannot prove before a court of law that detainees at Guantánamo Bay have committed a crime, then they should be released. This argument rests on the principle that people should be punished only for committing a crime.

The emotional appeal of this notion is undeniable, and the Bush administration has met critics partway by creating military commissions that will try some detainees for war crimes while denying them the full protections of due process available to criminal defendants. But the critics' argument rests on a half-truth, and as we rethink the wisdom of Guantánamo Bay, we should be sure to understand the complicated reality it conceals.

Detention sounds like a punishment, but it is not always considered one by the law. The courts distinguish between civil detention on the one hand and criminal incarceration on the other. A person who commits a crime may be incarcerated after a criminal trial in which he receives the full package of due process protections: a lawyer, a jury, an independent judge and so forth. A person who is merely dangerous cannot be criminally punished for being dangerous; however, he can be detained, and he is not always entitled to the expansive procedural protections granted to the accused criminal.

This principle appears in many places in the law. Mentally ill people who are dangerous to themselves and others may be institutionalized for as long as they remain dangerous. Such detention is not considered a punishment for crimes. Indeed, because the hearing that determines whether a person should be institutionalized is not a criminal trial, it does not entitle the person to criminal trial protections like a jury.

Dangerous undocumented aliens can also be detained. An undocumented alien who commits a serious crime receives a regular criminal trial, but after he has served his time, he is supposed to be deported. Sometimes the home country will not accept him, in which case immigration law authorizes the American government to detain him indefinitely. Recently, the Supreme Court has read the law restrictively in order to avoid constitutional problems with such detentions; but precedent that the Court did not overturn sustains the possibility that a clearer and more narrowly drawn statute would permit indefinite detention, especially in the most serious cases. Again, the detainee is entitled to a civil hearing only, and thus does not benefit from a jury or other criminal trial protections.

Throughout American history, states and the federal government have criminalized speech that advocates the violent overthrow of the United States government and other subversive activities. These laws, which long survived judicial scrutiny, authorized criminal punishment of people who were dangerous but hadn't actually caused harm.

Although in 1969 the Supreme Court held that under the First Amendment governments can ban only speech that would cause "imminent" harm — like incitement to riot — it remains an open question whether this standard is workable in an age of global terrorism exemplified by the Sept. 11 attacks. Less restrictive tests applied in earlier cases could be resurrected if the United States created a similar statute to counter the modern wave of terrorism.

The detention of enemy aliens, especially enemy soldiers, during wartime is a long-established practice. Enemy aliens and soldiers are not detained because they have committed crimes; they are detained because they are dangerous. During World War II, the United States detained hundreds of thousands of enemy soldiers in prison camps on American territory and elsewhere. Because being an enemy soldier is not a crime, these soldiers did not receive trials before their internment.

However, the Bush administration has failed to persuade its allies and many Americans that these wartime rules are applicable to Al Qaeda, possibly because, unlike a conventional war, the war against foreign terrorists is fought on ambiguous territory and has no foreseeable end.

As a result, people are less willing than in previous wars to trust the government's claim that someone found on the battlefield, wherever it may be, is a continuing threat rather than a civilian or a soldier ready to lay down arms for good. But the underlying principle — that dangerous aliens may be detained even if they have not committed crimes — is the same.

Finally, even when deciding the length of ordinary criminal sentences, judges often take account not just of guilt but of a defendant's dangerousness. A sentence, in reflecting dangerousness, may be longer than is justified by the defendant's guilt.

In none of these cases is a person dangerous just because the government calls him dangerous. But the standards vary with the context. To detain a mentally ill person, the government must usually show that he has a mental disorder that prevents him from controlling himself. To detain an enemy soldier, a relatively informal military hearing must establish a connection between him and a battlefield.

The half-truth that one can be punished only for committing a crime needs to be filled out with the larger truth that the government may detain dangerous people in order to protect the public. The question of whether to close Guantánamo is a question about whether suspected members of Al Qaeda are as dangerous as people made violence-prone by mental illness, enemy soldiers during wartime, undocumented aliens who have committed serious crimes, recidivist violent criminals and traditional subversives during times of emergency.

If they are, the United States government can, without offending American legal traditions, lock up suspected Qaeda members without the protections afforded by a full- blown criminal trial. Whether doing so is wise policy depends on the extent to which Al Qaeda continues to pose a threat to American security, the extent to which traditional criminal law protections hinder necessary security measures, the moral harm that occurs when the government erroneously detains people who are harmless, and the diplomatic constraints imposed by allies. It does not depend on an appeal to general principles.

Eric Posner, a professor at the University of Chicago Law School, is co-author of the forthcoming "Terror in the Balance: Security, Liberty and the Courts."