Forget for a moment all of the legal exegesis of whether or not the detainees at Guantanamo Bay are prisoners of war (subject to indefinite detention and military tribunals), civilians (subject to the court system of the United States), or “unlawful combatants” (constituting a newly defined class of suspects). A legal system is, at its core, a decision-maker, determining whether alleged criminals are innocent or guilty. Like any other imperfect decision-maker, the system has two types of error: Type I error (deciding a person is guilty when they are innocent), and Type II error (deciding a person is innocent when they are guilty). For a legal system with a given degree of accuracy, we can trade-off between the two types of error, reducing Type I at the expense of increasing Type II, or vice-versa.
We have, quite rightly, designed our regular judicial system to reduce Type I error in exchange for a high Type II error. Our system, with its demand for a unanimous verdict from 12 jurors and generous format for the defense, reflects Blackstone’s ratio; we would rather let ten guilty persons escape than let one innocent suffer. This makes sense; the population being decided upon are our own citizens, and the crimes for which they are being tried — while often serious — are not an existential threat to our country; in other words, the costs of making a Type I error are high, and the costs of making a Type II error are low. Hence, a system heavily biased against a guilty decision.
In contrast, prisoners of war, whether under U.S. law or the Geneva Conventions, are put through a separate legal system, one in which the trade-off between error types is much less generous to the accused. Short of torture and severe forced labor, most anything is allowed. The prisoners can be detained without trial for the duration of the conflict, and trials — when offered — are usually majority votes by a panel of judges. The character of the detained, as well as the consequences of releasing a guilty person, justify the reduction of Type II error at the expense of Type I.
The question we now face is how we wish to design a legal system to account for foreign terrorism suspects that reflects the particular constraints that such a system must face — for example, not all evidence against a suspect can be revealed to that suspect without compromising ongoing operations — while setting an appropriate balance between Type I and Type II error. The Guantanamo detainees exist in a sort of gray area between simple criminal offenders and captured foreign soldiers. As such, they are being put through a third system, one established by the Military Commissions Act of 2006 that sets the trade-off between Type I and Type II errors in a way that is appropriate considering the non-citizen status of the accused and the frequency with which released detainees go on to resume combat against the United States.
Much sturm und drang has been offered by critics of Guantanamo, largely because they view the issue in black and white. In their minds, the detainees are either prisoners of war or they are not — any middle ground between these extremes is a legal abomination in violation of the Geneva Conventions.
This lawyerly, absolutist view is preposterous. While the detainees do not strictly meet the requirements for prisoners of war, it is self-evident that our regular judicial system is not geared appropriately toward trying foreign, non-state combatants. The demand that we shoehorn this new class of suspects into our antiquated system may be pure from a legal perspective, but it ignores the motives that a legal system is meant to serve. Guantanamo Bay and the third way we have created may be ugly (as all fresh law and procedure is bound to be), but they are necessary, and must be sustained.