Deputy national security adviser John Brennan has caused a furror with his remark that, when counting terrorists who return, after release, to the battlefield "20% [recidivism] isn't that bad." Opponents of the Obama Administration's project of criminalizing the terrorist enterprise owe Mr. Brennan a debt of gratitude for this remark, because it helps to clarify what, precisely, is wrong with the thinking behind the project.
"Recidivism" refers to the likelihood of a criminal, upon incarceration and release, to commit the same or similar crime again. "Recidivus," in Latin, means to fall back. The implication is that the released criminal, in addition to having "paid his debt to society," has "learned the error of his ways." To commit crime again is to fall back to the ways which the criminal has acknowledged, at least at some point in time, to be wrong.
But the question arises, do terrorists ever acknowledge that the ways of jihad are wrong ? and if so, is their admission credible ? The conditions for releasing a criminal after a period of incarceration are two-fold, as I say. First, the criminal must have in some sense "Paid" for the crime. Justice must be served. But also there must be no danger to society incurred by the release.
Therefore, terrorists should be treated more or less the way we treat the criminally insane. They fight under an ideology and under the direction of the ideology's authorities. From our point of view, this ideology has no practical distinction from psychosis. They do not "fall back" to jihad because it is facile to think that such a profound caste of mind is ever broken by any period of incarceration. They "continue with" jihad.
The reason the war on terror, more appropriately the war against Islamic fundamentalist extremism, is indeed a war, is that it is conducted under the direction of authorities, Osama bin Laden, Ayman al-Zawahiri, whose disposition is known not to have changed. The only sensible justification for releasing proven jihadist terrorists would be that those authorities publicly recognize that hostilities toward the United States and the west are over.
More thoughts on this can be found under "war on terror" at