President Obama has made clear that he will close the Guantánamo Bay detention center. This is easier said than done. Closing the facility involves a raft of hard decisions and trade-offs that won’t get any easier simply because the new president’s name is not Bush. These are among the major questions Obama will face, in rough sequential order, before he can shutter the camp:
Who must be released? Nobody contends that all the current detainees at Guantánamo require continued incarceration. In its final days, the Bush administration cleared approximately sixty of them for release or transfer to other countries. The Obama administration could assume some additional risk by letting others go. The first step in closing Guantánamo, then, would be to decide how many people truly must be held and how many must be held in American, rather than foreign, custody.
Where to release detainees? Where to send some of the releasable detainees seems an intractable problem. The Obama administration is legally barred from sending them to home countries that will torture or persecute them. The administration cannot easily set them free inside United States, for some have terrorist backgrounds or connections, and the mere taint of having been called “enemy combatants” by the U.S. military will make them unwelcome. And the administration will have a tricky time convincing rights-protecting countries to resettle people deemed too dangerous to release in the United States. The president will thus need to figure out which detainees might be admitted to the United States and then leverage his substantial international prestige to persuade other countries to accept the rest. Ironically, the more willing he is to free detainees, the more difficult this problem will become.
Where should the remaining detainees be held? The new administration will presumably have to hold the remaining suspected terrorists in facilities in the United States, but where? They will probably end up in a prison on a military base because it would be unsafe to hold them among normal prison populations. But few states will want to house Khalid Sheik Muhammad and his friends, and members of Congress will be emphatic about keeping them out of their districts. Just as resettling nondangerous detainees will take careful diplomatic work abroad, resettling the dangerous ones in domestic prisons will require careful work with Congress.
How many of the remaining detainees can face trial? If the remaining detainees are to face continued custody, it will be more palatable to domestic and international public opinion and the federal courts if the detainees face criminal charges. But how many have committed crimes that could be proven in court with evidence judges will admit? It is critical both to publicly identify the detainees whom prosecutors intend to charge and to bring those charges swiftly.
What form of trial should be used? The number of detainees who face trial will depend to some degree on which trial system the administration deploys. There are three possibilities: ordinary civilian trials, military commission trials, and courts-martial under revised rules of the Uniform Code of Military Justice (UCMJ). Each system has pros and cons.
Civilian trials of terrorists are the most legitimate. But they also can endanger civilian juries and judges, they have demanding procedural and evidentiary rules that make convictions difficult, and the pro-government precedents likely to emerge from terrorist trials will hurt ordinary criminal defendants. Military commissions have more flexible rules that theoretically make acquittals less likely, but they are now politically damaged and have in any event doled out some short sentences. The UCMJ could be modified to operate as a military commission and would probably be more legitimate in practice. But the Constitution’s double-jeopardy clause may prevent detainees already tried in military commissions from being retried in a UCMJ trial.
A further complication in assessing these options is that the more demanding the trial system chosen (for example, civilian trials instead of military commissions), the harder it will be to convict, which means fewer detainees tried and more held indefinitely by other means.
Under what theory can detainees who are not tried remain incarcerated? Detainees convicted of crimes will be incarcerated for the term of their sentence. But detainees not yet charged or who can’t be charged must be held in some form of extracriminal detention. The United States has kept in military detention “until the cessation of hostilities” hundreds of thousands of enemy soldiers in previous wars and currently holds the Guantánamo detainees under this theory. It has also long used administrative detention to hold without trial dangerous persons such as child molesters and people with infectious diseases. The rules historically associated with these forms of detention need to be reviewed to minimize mistakes and legitimize long-term detention of terrorists not subject to trial.
Only Congress, working with the president, can establish such a system. The first and hardest issue Congress must address is the definition of the enemy to be detained. At a minimum, this definition should include everyone in the command structure of the Taliban, Al-Qaeda, and associated terrorist organizations who poses a clear threat to the United States. Beyond that, establishing a precise definition becomes hard. Congress will also need to specify rules concerning evidence, access to counsel, and government information; the length of detentions; the frequency and scope of administrative and judicial review; publicity rules; and many other features of a detention system.
What about creating a national security court? Many (including the authors of this article) have proposed the creation of a national security court composed of Article III judges to supervise and legitimize the detention process and possibly to serve as the forum for civilian terrorist trials. In either role, such a national security court would reduce the burdens on and dangers to ordinary civilian courts and employ nimbler evidentiary and classification rules. The objections to a national security court (beyond objections to military or administrative detention generally) are that it implies a permanent state of crisis and has had a checkered reputation in other countries. If the new administration goes this route for either detention or trial, the institution’s design will require sustained work with Congress.
What about acquittals and short sentences? Any of the trial systems listed previously might result in short sentences for, or the acquittal of, a dangerous terrorist. In ordinary criminal trials, guilty defendants often go free because of legal technicalities, government inability to introduce probative evidence, and other factors not related to the defendant’s guilt or innocence. In terror trials, this possibility is intensified by the difficulties of getting information from the place of capture, restrictions on use of classified information, and stale and tainted evidence.
Putting a suspect on trial can undermine detentions the government regards as important. For example, the government would have had little trouble defending the indefinite detention of Salim Hamdan, Osama bin Laden’s driver, under a military detention rationale. Having put him on trial before a military commission, however, it would have been unseemly to sustain his detention beyond the light sentence he was handed in November. (Sentenced to five years in prison, including time served, Hamdan was returned to Yemen to finish his term and was freed a month later.)
This conundrum gives the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences and to place the rest in whatever detention system it creates. Should the government loosen the rules for trial to make convictions easier, or should it rely more heavily on noncriminal detention? This is among the most difficult calls.
Should we wall off the detention system? The Obama administration will need to figure out the relationship between its domestic trial and detention system and the detainee system in the ongoing wars in Afghanistan and Iraq. The United States currently holds—without charge or trial and without access to lawyers or habeas rights—thousands of detainees in those two countries. These offshore detentions are perfectly legitimate under the Geneva Conventions, and in any event the resource-intensive system of trial and detention outlined above cannot feasibly be extended to thousands, much less tens of thousands.
But as the wars abroad drag on, many will ask why detainees abroad do not receive the same treatment as those at home. These questions will grow loud when the government stops bringing dangerous terrorists captured abroad to the United States, preferring instead to keep them outside our shores in the much less onerous and less scrutinized Geneva Conventions system. Closing Guantánamo will do the new president little credit if he is seen as having rebuilt it somewhere else.