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January 13, 2009, 2:55 pm

The Challenges of Closing Guantánamo

By The Editors
“Camp Justice” in Guantanamo Bay, December 2008. (Photo: Mandel
Ngan/European Pressphoto Agency)

President-elect Barack Obama, in fulfilling a campaign promise, plans to issue an executive

order next Wednesday directing the closing of the Guantánamo Bay detention camp in Cuba.
But he acknowledged in an interview on Sunday on ABC, that “It is more difficult than I
think a lot of people realize” to balance an adherence to a rule of law without “releasing
people intent on blowing us up.” We asked these experts what the hardest challenge the new
administration will face, and how that might be resolved.

• Benjamin Wittes, senior fellow at the Brookings Institution

• David Cole, professor at Georgetown University Law Center
• Andrew McCarthy, legal affairs editor at National Review
• Diane Marie Amann, law professor at University of California, Davis
• Matthew Waxman, professor at Columbia Law School

Needed: A New Detentions Law

Benjamin Wittes, a Senior Fellow and Research Director in Public Law at the Brookings
Institution, is the author of “Law and the Long War: The Future of Justice in the Age of
Terror and a member of the Hoover Institution Task Force on National Security and the
Law.”

In the news section

• Interactive: Guantánamo Database

• Next President Will Face Test on Detainees

The hardest single question in closing Guantánamo is what to do with those detainees whom
the government believes in good faith to be too dangerous to set free yet who could not
plausibly face trial before any tribunal of which America could stand proud. Today’s Times
reports that the Obama transition “appear[s] to have rejected a proposal to seek a new law
authorizing indefinite detention inside the United States.”
Such a rejection would be a real shame. The alternatives to creating a responsible new
detention authority are all bad, and establishing reasonable authority to detain the enemy in a
global struggle against terrorism would be neither radical nor inconsistent with America’s
constitutional traditions.

If Obama has ruled out a new detention law, he has only three options for handling the group
of hard core detainees. He can the let them go and try to manage the risk they pose by means
other than detention. He can keep holding them under current detention authorities, rooted in
the laws of war. If he pursues this second course, then the closure of Guantánamo will be
something a sham. Guantánamo will have moved and shrunk, but the policy will not really
have changed much. The third possibility is to transfer lots more detainees to the custody of
other countries, which might do anything from freeing them to torturing them. None of these
options should be attractive to the new president.

An unidentified detainee at a detention facility in Guantánamo Bay, December

2008. (Photo: Mandel Ngan/Getty Images)

That’s why a new detention law warrants a second look. The war on terror is a hybrid conflict
with attributes of both warfare and criminal justice but all of the hallmarks of neither. Like
conventional warfare, there is the need to detain the enemy outside of the criminal justice
system. But global counterterrorism shares with criminal justice the issue of genuine doubt in
many instances about who the bad guys really are — hence the need for due process
protections carefully designed to make sure that the people we lock up are actually the
dangerous terrorists we believe them to be.

A carefully drawn administrative detention law could provide for both of these needs. It could
give the executive branch flexibility that the criminal justice system rightly denies it in
locking up individuals who mean to do America great harm, and it could also give those
accused a robust set of procedural rights designed to protect against erroneous detention.

Unless Mr. Obama is willing to take on significant new risk, not having such an
administrative detention law would not mean ending extra-criminal detention. The United
States and its partners will continue to act to neutralize terrorism threats. Without new legal
tools, in all likelihood that means there will still be some combination of detentions abroad,
under less protective law-of-war standards, detentions by proxy governments, and targeted
killing. These possible outcomes would present a dubious accomplishment for human rights.

Defining Our Enemies

David Cole is a professor at Georgetown University Law Center, and the author, most
recently, of “Justice At War: The Men and Ideas That Shaped America’s ‘War on Terror,’”
and the essay “Closing Guantanamo,” published in Boston Review.

Closing Guantanamo raises the contentious issue of what to do with the 250 people still being
held there. Many in the human rights community advocate a simple solution — try them in
criminal courts or release them. But that solution fails to recognize the United States’
legitimate interest in holding individuals fighting against it in armed conflict.

Others have advocated a new preventive detention regime for “suspected terrorists.” Such a
scheme would give the government more flexibility, to be sure, but at an unacceptable cost to
fundamental rights. Those who can be tried for war crimes should be, not in makeshift
military tribunals, but in regular courts martial or civilian criminal courts. And those whom
even the Bush administration admits do not need to be detained should be released either to
other countries or resettled in the United States.

“These individuals can continue to be held for the duration of the ongoing armed
conflict with the Taliban and Al Qaeda — as prisoners of war, without criminal
charge or criminal trial.”

But there are still others, as many as 100 detainees, who may not be prosecutable for a
specific offense, but who are too dangerous to release — e.g., admitted Al Qaeda or Taliban
fighters who have said that they would return to the battle in Afghanistan if released. What
should be done about them?

My view is that, consistent with international and constitutional law obligations, these
individuals can continue to be held for the duration of the ongoing armed conflict with the
Taliban and Al Qaeda — as prisoners of war, without criminal charge or criminal trial. We
need not “try or release,” so long as we hold only those fighting for the other side in an
ongoing armed conflict — and do so consistent with the laws of war, international human
rights, and due process.

The problem with Guantanamo was that the administration asserted that it did not have to
follow any of the minimal rules that protect prisoners of war. It did not have to give them
hearings to ascertain whether they were indeed fighters for the enemy, and it was not limited
to holding Al Qaeda and Taliban fighters, but could hold anyone it deemed even distantly
associated with those groups.

A law authorizing military detention only of those fighting for Al Qaeda or the Taliban — not
“suspected terrorists,” not those who provide “material support,” not those associated with
groups associated with Al Qaeda — and only for the duration of the ongoing conflict in
Afghanistan, would pass international muster.

Nothing in the laws of war prohibits such detentions. Indeed, the laws of war assume that
persons fighting against the state will be detained, and simply seek to establish minimum
levels of treatment for them.

We should detain individuals only if the government can establish by clear and convincing
evidence in a fair hearing that they meet the narrow definition of “enemy combatants.”
Detainees should be afforded counsel, and at bottom must be afforded a meaningful
opportunity to contest their status.

But if the United States could hold Italian and German soldiers during World War II for the
duration of the conflict, it should have the same authority to hold Al Qaeda and Taliban
fighters — not for the never-ending “war on terror,” but for the duration of the conflict with
Al Qaeda and the Taliban in Afghanistan.

So What Has Changed?

Andrew McCarthy, a former federal prosecutor and author of “Willful Blindness: Memoir of
the Jihad,” is legal affairs editor at National Review.
It is impossible for someone who has demagogued a complex problem, as President-elect
Obama has, to move from overheated rhetoric into responsible governing. So, he has begun
trying to control the inevitable damage. Reports about his imminent executive order represent
stage two of that effort.

Unfortunately, what Mr. Obama is saying is meaningless where it is not wrong-headed. The
Guantánamo “executive” order should instead be called a “symbolic” order since it is not
intended to execute anything. Guantanamo will continue operating just as it has. Mr. Obama’s
stated desire to close it at some future point is the same desire members of the Bush
administration have been stating for some time.

“Guantanamo will continue operating just as it has.”

In fact, the promise to make diplomatic efforts to repatriate alleged combatants is the same
effort Bush has been pursuing for years — which is why over 500 detainees (two-thirds of the
detainees) have already been transferred out of Guantanamo.

Mr. Obama falters in his premises. First, his spokesperson says, “the legal framework at
Guantánamo has failed to successfully and swiftly prosecute terrorists.” But the purpose of
holding enemy combatants in wartime (which the Supreme Court has repeatedly validated, as
recently as the 2004 Hamdi case) is not to prosecute them but to remove them from the
battlefield and derive intelligence. Prosecution is incidental to that purpose, and often not
practical. If your first imperative in detaining people is the right one (i.e., to defeat the enemy
and protect Americans), you are going to detain many people who cannot be prosecuted at all,
let alone “swiftly.”

Mr. Obama has said that evidence proving detainee dangerousness, though possibly “true,”
could be “tainted.” That misstates the problem. The intelligence at issue was not collected for
prosecution purposes; it may not be usable in court because it is too sensitive or its acquisition
was not attended by routine law-enforcement protocols (like Miranda warnings). That doesn’t
make it “tainted.” It reflects the fundamental difference between investigating a criminal and
fighting a combatant.

Political vs. Legal Decisions

Diane Marie Amann is a law professor at University of California, Davis.

A particularly difficult challenge facing the Obama administration is, put simply, politics.
There are many ways to “close Guantánamo,” to invoke the elastic catchphrase of the day. At
one extreme Mr. Obama could end indefinite detention at the U.S. naval base in Cuba but
reinstate it stateside or at some new offshore site. At the other, he could order every U.S.
terrorism detainee, everywhere in the world, to be charged with a crime or released. He is not
likely to do either. Choosing a middle path will be difficult.

“Bring detainees deemed threats to stand trial in U.S. courts.”

Mr. Obama will have to acknowledge that even if it had no legal constraints, government
could not act to ensure absolute security. Yet government can work toward that goal – can
manage the risk of terrorism – even while acknowledging that it cannot fully eliminate that
risk.
The first step in closing Guantánamo must be to talk to Americans as adults about the nature
of terrorism in a way that President Bush never did. Then Mr. Obama and his lawyers will
need to take fresh looks at the case files to determine who poses no genuine, continuing
threat. Even the Bush administration says that many of the 250 detainees fall into this
category. Those detainees should be released at once – sent home or, if they risk harm at
home, given asylum in some third country. (Allowing a small number of these persons to
settle in the United States would make it politically easier for our allies to accept others.)

He next must make good on his promise to bring detainees deemed threats to stand trial in
U.S. courts. There are many ways for prosecutors to secure convictions untainted by coerced
evidence through imaginative use of existing criminal laws — not unlike approaches going
back to the days of Al Capone.

The Capone solution may not close the matter. There may indeed be a few individuals who
are truly dangerous but whom the United States cannot convict, at least in part because it
subjected them to torture in the course of captivity. American laws require that such persons
be released. Whether to obey or defy those laws – whether to accept the consequences of a
two hundred year old American legal tradition or to change it forever on account of a few
individuals – is a political decision that the new president, and Congress, will have to face.

Obama Keeps His Options Open

Matthew Waxman is Associate Professor at Columbia Law School, Adjunct Senior Fellow at
the Council on Foreign Relations, and member of the Hoover Institution Task Force on
National Security and Law. He previously held senior positions at the U.S. State Department,
Defense Department and National Security Council.

More important than whether President-elect Obama closes Guantanamo is how his
administration does so –- especially what legal process it provides those detainees it holds on
to. Mr. Obama’s recent statement that we need a detention system that “adheres to rule of
law” but “doesn’t result in releasing people who are intent on blowing us up” seems designed
to keep options open. He’s smart to do so.

The big question is what to do with any detainees who are too dangerous to send home but
who cannot be effectively prosecuted. Some expect this category to be very small, but I’m not
so sanguine. Even when the information linking some of the most dangerous suspects to al
Qaeda terrorism is reliable, it may not be usable or admissible in court.

If federal prosecutions aren’t workable, and releasing the most dangerous detainees is ruled
out, the new administration has few good options. It could continue to hold them in U.S.
facilities as “enemy combatants.” An alternative is seeking legislation authorizing
“administrative detention” for periods of time of a narrow category of detainees, pursuant to
strict standards and robust judicial review.

Critics justifiably worry that such proposals institutionalize detention-without-trial — and it

appears the Obama administration has rejected such a plan, at least in the short term. But the
thorny problems of detaining terrorism suspects picked up in lawless regions or amid covert
intelligence operations will persist long after the 250 remaining Guantanamo cases are
resolved.
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From 126 to 137 of 137 Comments

 128. January 15, 2009 12:37 am

During the wars in the Balkans it was clear that the International (Red Cross) Rules on
prisoners of war are outdated, by human rights, communication and experience. From 1993 at
the Harvard center for health and human rights, new approach to prisoners of war was
indicated as one of the major humanitarian needs. US Administration didn’t use knowledge
about goodness, and followed policy of wars, courts and camps. Damage is enormous. Today
there are no effective rules on prisoners of war in the world. Every prisoner of war is at great
risk of torture and death. It is imperative to propose revised rules to the International Red
Cross on prisoners of war. Start with the US committee comparable to the one on Prevention
of Genocide by Ms Albright.

— Dr Slobodan Lang