Undoubtedly, some of the detainees at Guantanamo are unfortunates who got swept up erroneously or because of local feuds. That is one of the problems with enemies who choose to fight out of uniform and to hide among civilians--it makes it hard to target enemies and not innocents. The whole purpose of the Geneva Conventions is to encourage armies to fight in the open and according to the rules, rewarding those who do with better treatment. Rewarding non-uniformed enemies by giving them extra privileges over uniformed POWs is therefore especially pernicious.

Nobody in the US military or intelligence wants to hold innocents as a matter of policy (some individuals, to cover up their own wrongdoing or for other reasons, might have private reasons to do so). The problem is figuring out who is whom at a reasonable cost (e.g., without ending the ability of the military to take prisoners), and what is the correct weighting to apply to the cost of detaining the innocent versus releasing the enemy.

The Administration wants to use procedures which have much lower procedural safeguards for the detained than formal US criminal trials (or civil trials, for that matter). They do this because they want to err on the side of not releasing enemies and on the side of procedural speed and economy. Is this inclination reasonable, even if it results in a statistically higher rate of injustice?

Yes. First of all, no one has ever argued that the military should be prohibited from killing or maiming innocents who are in the vicinity of military targets, although due care should be taken to reduce such "collateral damage." (On the whole, the US military is becoming more and more cautious about this issue as precision weaponry and media saturation move the tradeoff in the direction of greater care.) If the military is allowed to kill substantial numbers of innocents in order to kill a small number of enemies, as I believe they must, then it follows that they must be allowed to imprison some of the innocent in order to detain the guilty. Application of an individual justice model to battlefield captures is a category error--if we're allowed to kill someone without due process, we are surely permitted to detain him.

Second, unlawful enemy combatants are, if memory serves, subject to summary execution in the field under the Geneva Conventions. No elaborate due process protection is contemplated under these conventions, so innocents could easily be executed in error after capture. If such executions without trial are legal, how can an extended stay at the Hotel Guantanamo be illegal?

Third, alternative procedures that bring the full range of US procedural safeguards to battlefield captures are wholly impractical for any power intending to actually fight wars. If every German and Japanese POW had had the right to a criminal trial, the Allied war effort would have come to a standstill. (More likely, the troops would simply have refused to take prisoners, creating an increase in injustice.) Perhaps someone believes that the age of Kantian peace is upon us, if only the nasty US would stop its saber-rattling and saber-slashing, but that individual would be a fool. In actuality, it is alarming to consider how dependent the entire OECD is upon the US military to preserve basic order (largely through deterrence but more and more through direct action). For the foreseeable future, increasing the net sum of justice in the world requires that the US military be capable of actually fighting wars, even if that means an increase in individual injustices due to erroneous detention.

Those who warn that war brings with it a host of evils often forgotten during peacetime are correct. War is a horrible thing. Being massacred, terrorized, or oppressed without fighting back is worse, however. We have to be careful that in trying to make war less horrible we do not make massacres, terrorism, and oppression more frequent and more severe.

On the laws of war and illegal combatants, the following article is pretty clear, although I am not a lawyer and cannot independently judge the scholarship. The last footnote discusses the tradition of summary execution of illegal combatants.

http://www.findarticles.com/p/articles/mi_m6007/is_55/ai_n8585592

The evidence to date overwhelmingly makes clear that jihadi terrorists are provoked by American weakness, not the harshness of American policies. It was their conclusion after seeing our passive response to attacks (ranging from Beirut 1981 through the Cole attack in 1999) that committing violence against American targets was rewarding and low-risk. bin Laden and Zawahiri have written as much in their messages to recruits.

When Hafiz Assad leveled Hama, he went out of his way to show the devastation on TV for a reason--jihadi terrorists are intimidated by brutality greater than their own. On the other hand, our humanitarian interventions in Bosnia and Kosovo have won us no credit in jihadi terrorist circles. These are not people you can cozy up to. They treat friendly gestures with contempt.

I would speculate, moreover, that it is precisely our stance of moral superiority and adherence to law that drives jihadi terrorists completely around the bend. It's bad enough that the West is technically, militarily, economically, and politically more advanced than the Arab world. To add to that dominance possession of the moral high ground as well must be completely intolerable to the outraged inferiority complexes of those attracted to violent jihadism. If we just cut their heads off and streamed the pictures over the internet the hard-core bad guys would respect us more and hate us less. (Another excellent reason never to do such a thing, in my humble opinion. I don't really want their respect or tolerance.)

The sophisticated argument about Guantanamo's negative moral effect is not about recruitment of new terrorists--those interested in blowing themselves up or murdering noncombatants are not interested in legal pettifoggery except in a tactical sense. Rather, the problem is the huge passive bystander group, both Muslim and non-Muslim, whose collective attitude toward the jihadi killers (and the war against them) matters greatly.

For example, we need Europeans at least to refrain from giving aid and comfort to the enemy, and at best to vigorously help us combat them. To the extent that anti-Americans can use Guantanamo (or a caricature of it) to persuade others not to be helpful, it may behoove us to give up some military effectiveness and legal rectitude in order to flatter Europeans' moral vanity. (Of course, it would be preferable to win over bystanders by persuasion alone, without undermining our security and the Geneva Conventions, but apparently our powers of persuasion are quite limited.) So we may have to accommodate the mentality that let Robert Stethem's murderer go free after a mere 15 years of a "life" sentence, the same mentality that upholds international law as long as it is used only to restrain the US but not jihadi killers.