In his defense of Guantanamo Bay (and of our detention policy in general), Yost makes a fair point — our legal system, at its core, is a decision-making system with Type I and Type II errors, and the Guantanamo Bay detainees form a category of suspects that do not appropriately fit into either of our existing legal pathways.
However, Yost is wrong to dismiss the details and implementation of the law as mere “legal exegesis.” While it is true that a legal system should reflect the trade-offs that society demands, the rule of law matters too. As important as it is that we establish new legal pathways for dealing with captured terrorism suspects, the way in which we create and constrain these new systems and the consistency with which they fit into our other legal frameworks matters more.
As it stands, there are two major categories of failings in our detention policy.
The first is that our current detention policy is not the clean and coherent “third way” that Yost pretends it is. Instead, it is a tangled mish-mash of decisions, born not out of clear thinking and rational goal setting, but out of clashing interests and bureaucratic inertia. It has been nearly a decade since Congress first gave the president authority to detain combatants related to al-Qaida, and in that time we have failed to create a rational set of rules that distinguish between different types of detention. For example, we continue to categorize detainees based upon the area in which they were captured rather than the characteristics of the detainees themselves. Whatever our thoughts on the design trade-offs that must be made between legal systems, it should be clear that the current state of affairs in detention policy is not a suitable endpoint. Our rules for dealing with the spectrum of possible offenders — whether they are material supporters of terrorism or direct participants or some other strain of criminal — need to be made much more intelligent than they are now if they are to properly reflect a consistent set of social goals and values.
The second problem is that the rules have not just been poorly chosen; in some dimensions, rules haven’t been chosen at all. With many important considerations, we continue to play things by ear and let choices be made either by default or by judges operating with little precedent. The unfinished nature of our detention policy is unfair to the suspects being processed (who would enjoy going through a legal system where the rules haven’t been written?), but more importantly, it will lead to unintended consequences for our society as policy drifts aimlessly from case to case. The more we leave to arbitrary whim, the less likely we are to achieve the results that society wants from its legal system.
The current discussion of detention policy is regressive, obsessed with finding ways to deal with our existing detainees and digging up arguments to justify past positions. What we need is to wipe the slate clean and create a forward-looking policy that addresses the problem of future detainees.
Guantanamo Bay, or something like it, is necessary. But it can and should be made better.