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Assessing the Risk of Guantánamo Detainees

The press has discovered that it is shocked that America is releasing dangerous people from Guantánamo Bay. The New York Times reports, based on a new cache of Wikileaks documents, that Guantánamo detainees classified as low risk had turned out to be major terrorists, and that detainees classified as “high risk” turned out to be nothings. NPR reporter Tom Gjelten declares this morning that,

What we’ve learned that’s most striking is about how the Guantánamo commanders ranked the detainees by how dangerous they allegedly were. We’ve learned for the first time that the detainees were officially sorted by how likely they were to pose a threat to the United States if released. That was the standard. . . . We now see that more than a third of the detainees who have passed through Guantánamo since it opened are officially assessed as likely to pose a threat to the U.S. But many in that high-risk group were shipped out anyway. . . . At least 160 and maybe more. We’re being conservative here.

Let’s be clear: None of this is new. It isn’t new that some detainees have convinced the military that they posed little risk and then went on to do bad things. And it isn’t new that America has sent home lots of people whom it doesn’t regard as innocuous either. The breathless reporting of such facts is mystifying and damaging.

Nobody should be surprised to learn that we have released dangerous people from Guantánamo. Even to call this an open secret is to make more of a secret of it than there ever was. It was simply an open fact. There were, of course, erroneous detentions, but no serious person believes that there have been anything like as many erroneous detentions as there have been releases. Nor was either the Bush or Obama administration claiming ever that all of the people it released posed no threat. The press has spent a great deal of time and energy portraying the Guantánamo population as composed mostly of sheep-herders and other innocents. But that is never the way the population looked to intelligence analysts. Decisions about releasing people were always about weighing uncertain risks and uncertain benefits associated with continued detention. We cannot as a political culture cry out in protest when detainees are held and when they are freed.

What’s more, risk is contextual. It will not do to note that a given detainee was once classified as “high risk” and to conclude from that fact that it was an error to release him. A great many people pose risks in some circumstances but not in others. A person might, for example, pose a great risk if left unmonitored but pose a very manageable one if his home country is willing to take responsibility for keeping an eye on him. Saudis whom we would not want anywhere near airplanes with box-cutters in the United States might seem like eligible candidates for release into a Saudi reintegration program that has shown promising results. Afghan detainees who on their own terms pose serious threats might pose minimal threats to the extent that one can, say, build Afghan institutions and prisons capable of handling them. By contrast, even relatively innocuous Yemenis might seem too threatening to let go if one is talking about releasing them into ungoverned territories with active terrorist elements.

And risk assessments also change over time. As one learns more about detainees, some who seem like high-risk individuals will come to seem less threatening–and vice versa.

If we insist on irrationally vacillating between ignorant braying for the freedom of dangerous people and expressions of shock at the internal assessments of their actual danger, we will do no service to either liberty or security. We will paralyze ourselves. The right approach is to build systems that reflect an appreciation of the uncertainty inherent in this sort of exercise—and then maturely to live with the results those institutions generate. We need to accept that we will detain people whose detentions we will come to regret, and we will release people whose releases we will come to regret. We should not pretend when either happens that certainty was possible.

  • Benjamin Wittes is a senior fellow in Governance Studies at The Brookings Institution.He co-founded and is the editor-in-chief of the Lawfare blog, which is devoted to sober and serious discussion of "Hard National Security Choices," and is a member of the Hoover Institution's Task Force on National Security and Law. He focuses on legal issues surrounding the war on terrorism and national security, judicial nominations and confirmations, and the federal courts.

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