Many of you have probably been following the story of Abdallah Saleh al-Ajmi (A ‘Ticking Time Bomb’ Goes Off) — a released Guantanamo detainee who recently launched a suicide bomber attack in Iraq. The responses have been largely predictable, and unfortunately lacking in perspective. Most discussion of this issue has fallen into one of three camps. There are some people who are using this case and a justification to never release anyone from Gitmo. Others are using it to demonstrate that conditions in Guantanamo were so bad that they actually seem to have encouraged a terrorist act. Still others have used this a cudgel to beat the Bush Administration, accusing them of incompetence in creating conditions where there was no choice but to let him go.

What we need instead is the kind of debate hinted at by James Joyner’s posts from last month (Freed Gitmo Inmates Return to Terrorism) and (Gitmo ‘Recidivism’ Claims Don’t Stand Scrutiny). Dr. Joyner dances around the key question, which is, “what is a tolerable level of recidivism for released terrorists or terrorist suspects?”

Ultimately, one of the key intellectual problems with the “war on terror” framework was the tendency to think of captured terrorists as “prisoners of war.” Indeed, this misguided approach has been embraced by both left and right, with liberals hoping to apply the label as a way to normalize the legal status of detainees and conservatives using the war concept to argue for potentially permanent detention occurring as long as a state of “war” existed.

While the criminal justice framework is not applicable to the entirety of the terrorism problem, it does provide useful insights into the treatment of terror suspect. Ultimately, in any criminal justice system there is an understanding that confinement is a way of pursuing multiple, partially overlapping goals: preventive isolation from society (”getting the bad guys off the streets”), punishment, and rehabilitation. There is also an understanding that incarceration is not cost free, as prisoners over time become (a) institutionalized and hence unable to function on the outside and (b) radicalized in the sense of becoming more hardcore in their criminal propensities. Unless you are unalterably committed to permanent incarceration there is a diminishing returns function, where the long-term benefit of holding someone diminishes and the long-term risks increase.

There are, in short, two distinct curves that intersect at some point, and the policy choices defined by these curves are bound by an implicit assessment of how much of a recidivism rate we are willing to tolerate. It is this latter discussion that we need to have publicly. Some terror suspects will ultimately launch deadly attacks after their release. That is the starting point of a discussion, not the end. Are we willing to accept some level of recidivism? What level? If we are not, what are the long-term implications of that approach? Which of the incarceration goals do we want to prioritize?