The Pentagon seems ready to assert that 1 in 7 Guantanamo inmates return to terrorism. It seems likely that this will encourage the recent backtracking on Guantanamo’s closure. Once again, we will hear about how the inmates are hardened killers who hate America, threaten it, do not deserve due process, deserve to rot in a hole, etc. Clearly some of them do. But it must also be admitted that 1 in 7 is not such a bad recidivism rate. 14.28% is actually not that exceptional; compared to US rates it even seems low. It is also not clear just what kind of terrorism they return to.

The knee-jerk response is to say that even 1 in 7 is unacceptable, so W was right that we should just ‘lock ‘em up.’ This is an overreaction I think. There is a political choice here to be made, unless we adopt Cheney’s 1% doctrine that even 1 in 100 is too much. But by this logic, just about anyone we pick up in the GWoT should wind up in a hole, because who knows what he might do if we let him out.

But think more politically about it. 1 in 7 is bad, but it could be a lot worse. 1 in 7 is a ‘reasonable’ or ‘manageable’ number unless we assert that the goal of the GWoT is to kill every terrorist on the planet. This is impossible and would require such extreme means that it would create more problems that it would solve. As we learned in Iraq, we cannot kill (or imprison, torture, etc.) our way to victory. We don’t want the cure to kill the patient. And clearly, the side costs of Guantanamo have been enormous – the reduction of trust in the US, prestige loss, the temptation to torture, hedging by traditional allies, etc. The reasons to close Guantanamo are obvious. Idealistically, it violates core American beliefs of due process, civil liberties, human treatment of prisoners, etc. Realistically, Guantanamo’s damage to America’s reputation and its use in inspiring moderate Moslems that extremists are right about the US, almost certainly outweighs its value. In short, if we learn good intel at Guantanamo, but inspire new terrorists and betray our values in doing so, is it worth it? Is it worth 1 in 7?

Probably not. The answer to 1 in 7 is not the 1% doctrine. Instead it suggests what the lawyers and centrists have sought all along – some kind of investigative and legal process for these people. It is amazing that almost 8 years after 9/11, there is still no proper legal framework for detainees. In the place of ‘lock ‘em all up,’ we need a method to investigate, rules of evidence & appeal, punishment guidelines, special courts if necessary, etc. This process may be different for terrorist suspects and illegal combatants, but the framework must be open for public debate, authorized by congressional statute, constitutional consonant (i.e., acceptable to the Supreme Court), and with proper oversight mechanisms. Problems like this will continue arise as the GWoT rolls on, and the executive branch ad hocery of the last 8 years is both legally confused and insufficient for the burden of people to be processed.

In short, we need to create a legal framework that will allow us to investigate, and if warranted, prosecute and punish these people. This is what we normally do with other lawbreakers. Let’s adapt it to these new circumstances. Clearly some of these people are threats, but also 6 in 7 are not. That is a pretty sizeable number. Instead of absolutist positions like the 1% doctrine, we need a more nuanced, professional and sustainable approach that tries to discriminate the redeemable from the truly awful. This is what courts and investigations do everyday. The requirement to do that here is no different, even if the method will be. And we must be prepared for some recidivism nonetheless. This is the price we pay for being a liberal democracy. We can do as much as we can, within limits, to reduce our exposure, but the 1% doctrine betrays the very openness, generosity, and liberality of our society that we are trying to protect.