Friday, January 23, 2009

A Different Approach to Gitmo

A guest post by JS:

As I'm sure most of you know by now, Barack Obama has ordered Gitmo's detention facility to be closed within 1 year. The big problem is where to put the people in Gitmo that are believed to be dangerous, but for whom there is insufficient evidence to lock up for past crimes. To illustrate the severity of the problem, a report today indicates a person who was released from Gitmo has since become the #2 leader in Al Qaeda's Yemen branch (see here).

All of this got me thinking about a possible solution. The US Supreme Court has allowed certain people to be civilly committed - typical examples include the mentally ill or sexual predators. Importantly, this is not a criminal confinement - the people are not being punished for past crimes, but rather for the high likelihood they will commit a future crime. Once it is clear they pose no future danger, they are released.

The Supreme Court has laid out the following criteria for indefinite civil confinement: (1) "the confinement takes place pursuant to proper procedures and evidentiary standards," (2) there is a finding of "dangerousness either to one's self or to others," and (3) proof of dangerousness is "coupled . . . with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality.' " (see Kansas v. Hendricks and Kansas v. Crane).

So consider a Gitmo detainee for whom there is not enough evidence for criminal confinement for a past crime. It would seem that #1 and #2 could likely be satisfied - 1) The evidentiary standards are different since the concern is future crimes, not past crimes (though past crimes can be brought as evidence) and 2) the person likely would admit to wanting to kill or hurt others. As for #3, the question becomes whether wanting to be a martyr or wanting to kill others for ideological or terroristic reasons is a "mental illness" or "mental abnormality." The test here is psychologically based and depends on how the mental health community defines mental illnesses and abnormalities. Another part of the test is whether the person is likely to be unable to control himself in committing the future crime.

I'm curious what people think of this idea. Do you think all 3 elements could be proven? Do you think we should civilly confine people like this? Are terrorists similar to the mentally ill or sexual predators? As a larger issue, is it right to confine people for the likelihood they will commit a future crime? Is this too much like Minority Report?

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