I had a conversation with a colleague today on the prison situation in Iraq. There is an ethical question--or rather, a series of them--raised by the recent revelations, plus the claims by the ICRC that 70-90% of detainees are detained by "mistake."
I'd like to invite the board to comment.
The issue is this: what should we do with these detainees? My colleague asserts that they should simply all be released. Her reasoning is as follows:
1) It is wrong to hold potentially (to say nothing of probably) innocent people without trial, and,
2) We not only have not tried, but have no mechanism for trying, these potentially innocent people, therefore,
3) We should release them all.
The failure to do so, she asserts, is not only a PR disaster, but a moral failure.
I am reminded, however, that there was another PR disaster which preceded this one. In the first months after the fall of Baghdad, the US adopted a hands-off approach to security, attempting to avoid serving as policemen. The consequence was widespread chaos, especially in Baghdad itself: looting, roving gangs, armed robbery, rape, murder, and general brigandage. The roadblock system, out of which very many of these detentions arose, was a direct result of that chaos.
There is, in other words, another set of moral questions aside from the one she raises. We know Saddam released his prisoners and emptied his asylums. We have seen what happens when this particular group of people is loose. On the one hand, "this particular group" probably includes quite a few innocents, who could be released without harm. On the other hand, we have moral duties not only to the prisoners, but to all the Iraqi people--a moral duty not only to sort out innocence from guilt, but also to try to protect the free majority in the meanwhile.
That said, I don't believe a blanket release of the prisoners is a moral, or a feasible, option. The question is, what is the right--the moral--option? I have a few alternatives; I'd like to know what you think of them, and if you have others.
1) The current policy could be maintained. This policy holds that we should wait until Iraqi court systems are erected to adjudicate guilt. Positives: this system respects Iraqi sovereignty. Further, it aids legitimacy of the new government by giving them a task to perform that everyone wants done, such that people are apt to cooperate with it. Further, it aids stability in the long run by putting this government on a footing of independence from the US, as its first acts will include a popular overturn of unpopular American detentions. Negatives: this system requires a great deal of time, during which innocents will remain imprisoned. Not only the courts, but the laws will have to be decided upon before such a review process becomes feasible. This could take months, or potentially, years.
2) The military could begin an administrative process to review cases of detention. Persons held by the Coalition would be examined by a military officer, the report for the reason of their detention likewise examined, and a ruling made over whether or not they should continue to be detained. Due to sovereignty issues, such a review could release someone, but not convict them--those held over would be turned over to the Iraqi courts when they become available. Positives: this would probably be faster than waiting on the courts. It also respects Iraqi sovereignty. Negatives: an administrative process is less likely than the judicial one to arrive at the truth. Reports may be lost, for example, and witnesses (many of the arrests were made by the 3rd ID) rotated out of country. The military may err on the side of releasing people, in which criminals will get free; or they may err on the side of not doing so, such that people who go to trial under the Iraqi courts do so with the stigma of having been reviewed-but-held by the Americans. This could prejudice outcomes.
3) In many parts of the country, Sha'riah courts are operative--Moqtada al-Sadr has been running them, for example. While it would be politically impossible to allow Sha'riah judgments over persons not wishing them, detainees who request a judgment could be referred to a Sha'riah court for a quick ruling. Positives: these courts exist and are functional, and their authority is widely recognized. There could be some positive PR from the respect shown to Islam by the Coalition. Negatives: there is a chance that radical clerics might vote to release actual thugs in order to recruit them. There is a certainty that, once given legitimacy in this fashion, Sha'riah will everafter occupy a place as a parallel system of government in Iraq. Separation of church and state, and the long term stability of the government, would be made more difficult.
I am not including a UN tribunal as an option, largely because the UN has shown that it will cut and run in the face of terrorist bombings, and any such process will have to be made of stronger stuff. A multinational panel isn't impossible, but it would have to address that concern, without running afoul of the concerns mentioned in point (2) above.
Thoughts?
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