“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
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.
From 1 to 25 of 138 Comments
Common decency demands an end to these terrible acts! Simply charge these people or release them! It is just not acceptable for anybody to claim someone is too dangerous to be released but there is no evidence to charge them with anything…this is not justice, law based, or even sensible!
— ChaoticianAndrew, my sympathies. The comments of your fellow commentators make my head hurt. All the delicate dancing around the problem seem more intent on protecting The Naif’s credibility in the face of the impossibility of carrying out his campaign promises.
The detainees at Guantanamo were not picked up while plowing the fields or selling their wares at market. The fact our crack CSIs were not available to collect rocket-launcher residue from their hands should not be determinative int he face of other evidence that they are out there to kill us. All of us, including their heartfelt defenders.
And if even one of them turns out to be Ramzi Yousuf part deux, then releasing them into the wild will make any decision Bush made completely inconsequential. Except to the extent it is hidden by the media, or muddled by more academia.
The Naif gets this. He can’t any longer hide behind lofty rhetoric; as of January 20, it’s all on his head. Literally. I guess the one thing he can count on is that he won’t have scores of academics and “journalists” ready to label him the next coming of Hitler.
— TheresaHere’s a fun game: Can you tell which one of the contributors above is the political hack, kids? For of the five authors above offer thoughtful discussion of the problem at hand; Mr. McCarthy uses his contribution to take a cheap political thought. Once again, the National Review demonstrates the intellectual poverty of contemporary American conservatism.
— jdDiane Amann makes an excellent point. Let’s get at these terrorists the way we got to Capone. Charge them with tax evasion!
This is what passes for serious legal discussion at UC Davis? Good grief.
— HMJI am of the opinion that Gitmo will never be closed.
— FisherI think David Cole has it right. If these people were fighting against our or our allies’ troops in Afghanistan, they are military POW’s and should be treated as such for the duration of the conflict with the Taliban and Al Queda, under internationally accepted standards of incarceration.
Those suspected of non-military terrorist activity need to be charged and tried, and if acquitted, deported to their native countries. If they request asylum after acquittal, it should be in a third party country willing to grant it. If convicted, they need to be incarcerated in the US for a term determined by a judge, and deported upon release. Those involved in murder of civilians should be put away for life without parole, as any criminal would be.
Those who are of no risk or being held without any evidence, but only on suspicion, should be released at once.
The cost of a free society and judicial system is that sometimes the guilty go free and sometimes the free are incorrectly judged guilty, but we are compelled by our values to follow due process, and most often we get it right. If we aren’t willing to try them as terrorists or give them POW rights, the only alternative has to be to send them back where they came from.
I can’t imagine settling any of these people in the US. If the innocent among them didn’t hate us before, they certainly do now.
— RonMDavid Cole:
“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.””
This is all nice and good and in many cases even practical but what do you do when an open (i.e. “fair”) hearing would compromise ongoing intelligence gathering?
— IPIi hope that the grace of god will allow this unethical, abomination of a center for corrections, be closed. we did fine without it before, we will be fine without it again!
— Anthony CoombesDon’t close this valuable center. Dick Cheney, George Bush, Donald Rumsfeld, Paul Wolfowitz and may others could be safely housed there for the rest of their miserable lives after their impeachment and war crimes trials. Further and more currently we can also send the financial criminals who brought us the current meltdown. Don’t close this future home for our most culpable criminal politicians and business leaders! It could also be a tourist attraction — a kind of zoo for the education of our new generation of citizens who will learn from the audacious crimes of the late 20th and early 21st Centuries.
— MarkGood God, where was the reasoned debate these last 7 years!?
Gitmo was too convenient a lash to punish Bush with, so it was a bogeyman. Only now does it turn into a real place that must be rationally addressed.
What a pathetic bunch American liberals have become. And what’s even more hilarious is how they howl with outrage when there guy is in office, and conservatives show similiar unreasonablness.
Well, you called down the thunder, now reap the whirlwind. Obama is now the biggest target in the world for all kinds of enmity, just like GW Bush was.
Enjoy the show!
— PubliusShame on the Times! This panel is about as “fair and balanced” as I would expect of Fox so-called “News”. Why is there no representative of Amnesty International or Human Rights Watch on this panel?
— Mike W“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. ”
this phrase shows already the acrobatics these “experts” try to do to avoid the simple statement that Guantanamo itself is a violation of human rights and nothing less. Out of the 6- or 700 detainees, 250 are left over, which means that 400 or so had been detained illegally: with broken health and psychological problems after suffering water boarding torture or “only” inhuman treatment. And still “MANY” should be released at once according to the pre-Obama-administration.
Mr. Obama has made a promise which earned him respect of his fellow-citoyans and much of the rest of the world. Yes, I agree, there are many problems to be solved, before these 250 persons can be freed: many of them are no longer persons, but psychological wracks and need help. There might be some legal “difficulties” to be solved for those who really had evil intentions wrt the US. But please: who in his sane mind would not understand that ANY detainee of Guantanamo, who might have been a peace-loving person before, would not turn into a would-like-to-be-terrorist after such a treatment ???
— Thomas B. HumanI suspect those pushing for a new indefinite detention law are trying harder to kid themselves than they are the rest of us, so I guess it’s forgivable. Nevertheless, the kindest possible description for the proffered detention solution is hopelessly disingenuous.
With a more conventional war between countries, neatly packaged like a team-sports match and all participants clearly labeled, it is easy to justify “incarceration for the duration.”
In this instance we don’t even have a way to define when it’s over. There is no government that can surrender and tell their army to lay down their arms. The opposition just isn’t that cohesive and structured.
As many have pointed out, this goes on forever. More than century after the collapse of the first Moro uprising in the Philippines, America still has Special Forces in the islands chasing the latest version of a Moro insurgent movement.
Unsatisfying as it may be, the ‘War on Terror” will never end, just like the wars on crime, poverty and disease. Is anyone suggesting someone caught with drugs be locked away until the war on drugs is over? The drug problems of the nation kill more people than terrorists, and a least this involves a conviction for something.
Just who is culpable enough to be labelled an enemy is another awkward issue. For those who can be convicted of crimes in a reputable justice system, sentencing and incarceration is perfectly reasonable.
In the absence of a credible court system, defining criminality is inevitably reduced to guilt established by nothing more than association or suspicion. To suggest that the USA has the right to lock up those who appear to oppose them until all opposition ends (i.e., forever) is obscene in the worst sense of the word.
Unless America wishes to continue making enemies faster than they can be killed or captured the policy of indefinite detention must end as quickly as possible.
— JohnThere seems to be an assumption, which I think might be unsubstantiated, that all the prisoners at Gtmo are, in fact, terrorists. One recent case involved a person who was Osama bin Laden’s driver. I don’t doubt that he was someone we needed to talk to, but being a chauffeur for Osama bin Laden hardly qualifies him as a terrorist. No doubt that there is good evidence that some of the prisoners are terrorists. The first step in closing Gtmo should be sorting out those who we have reason to believe are, in fact, dangerous and those who, like the chauffeur, were caught up in a dragnet and aren’t worth the time or trouble to bring to trial.
— WilliamHSo RonM,
— VJYou want to ask the countries that will not torture them but at the same time are somewhat against US to take these people. I think that’s how Australia was started. So US will pay these countries to take these people off its hand? You are right that these people can not be settled in US but by same token, they can not anywhere else except in countries hostile to US and who will use these people in fight against US. Based on the Pentagon data, 11% of the released (apparently the ones who did not pose a threat to US) have joined the terrorists rank and are committing crime against US interests. It was a stupid campaign promise and it will remain just that - a campaign promise.
The United States needs to close Gitmo to maintain our standing as a free nation that supports human rights. The path ahead may be difficult to navigate at first, since there’s not much precendent in the matter, but closing the camp is the right thing to do. The alleged treatment of prisoners there is something we cannot support. It’s time to move forward toward justice.
— JuliaIn my opinion holding legitimate enemy combatants, as enemy combatants in adherence to international convention is well within the rights, and indeed moral obligation. The main element that needs to be improved is adherence to international convention as to the treatment of enemy combatants, that is the critical flaw with Guantanamo in my opinion. In that regard I agree with David Cole.
However the really challenging issue is what to do with those who are not enemy combatants but pose a direct threat to national security. In my opinion only criminal trial will bring the international legitimacy Obama desires.
As for those who are neither a direct threat or are not “enemy combatants” in the traditional sense, they should either face trial within the criminal justice system or be released.
Critically there has to be a fair and balanced method of ensuring the people being held are indeed the people they are believed to be.
— Tim BGuantanamo Bay Prisoner Problem Solution
The solution to the Guantanamo problem is easy. Transfer the two hundred fifty prisoners to Ft. Leavenworth, KS and then assign through the Justice Department about two cases to each of the approximately 100 U.S. Attorneys around the country. Tell them each has to try two cases. The jurisdictional issues might require special legislation.
If the person who is tried, is felt to be really dangerous, but has only a paucity of proof, and is acquitted, follow him around. What ever it takes or costs. Follow him around. He will never do anything wrong. If he does it again arrest him again and prosecute him.
The conservatives (Vice President Cheney) are trying to scare the new administration by arguing that if the Guantanamo Prisoners are not detained forever, and a nuclear explosion occurs in a U. S. city it will all be blamed on President Oba
— GARY W. GRAMERWho says they are too dangerous to release? Did they say that they will blow up Americans if they were released while they were not being “tortured”? Believe me, if I were subjected “un-torture” as they went on in Guantanamo and Abu Ghrab, I’ld tell the interrogators anything and everything they wanted to know whether true, false, or imagined and in addition express violence upon them unless- they told me they didn’t want to hear that while doing “un-torture” upon me in which case I may just think it.
Since when is mere expression of intent to commit a crime a sufficient a crime to prosecte them? If that is so, then our own prisons in our homeland has to be much larger to house all those (perhaps 50-75%) of us who may express an intent to commit crime in the heat of the moment… or perhaps 100% of us who may only imagine it fleetingly.
Prisoner’s of war? War is defined as a violent conflict between two nations. Al Queda and now Taliban are two stateless international actors. They are the same as the international mobs, except more fundamentalist/religious.
How do you control the mob? Is it not called a “police action”? To let the Bush administration call a police action a “war (on terror)” was one of the biggest mistakes we made in our democratic history. And what happened to the “war (on drugs)”, “war (on poverty”), “war (illiteracy)” etc.?
Of course, the Congress wouldn’t argue with semantics because of all the spending a war incurs instead of a mere police action. By some estimates 2% of the national budget is earmarks. A $3 trillion “war (on terror) translates to $60 billion, a tidy some to their friends and campaign contributors.
— Joe60PacksIs this really what counts for “Debate” in the Times?
Three out of five support preventive detention legislation, and the fourth effectively supports preventive detention without legislation?
I certainly hope that our President-elect’s stated commitment to the rule of law can withstand the advice of the selected pundits on this page. Closing Guantanamo is not the difficulty that is suggested by most of these commentators. What was difficult was the destruction of the rule of law perpetuated by the Bush administration.
It is seven years too long in coming, but I certainly hope that what is provoking these pundits is the fast-approaching light at the end of a long, dark tunnel.
— close gtmoI VOTED FOR MR. OBAMA FOR HIS PROMISE THAT HE WILL CLOSE GUANTANAMO.THAT HE `S GOIN TO TO PUT AN END TO TORTURE.CLOSE GUANTANAMO FOR EVER.THAT IS NOT THE AMERICAN SISTEM.
— ALENX NOBOAGolly . . . who would have thought that running a government was so darned complicated!
— Arnie KellerAs someone whose had relatives interred during WWII while others served in the 442nd, there is a certain poignancy in reading this post. Yet, there is a huge difference between Japanese families that were interred and those individuals that are imprisoned at Gitmo. There has been a process for determining who stays and who leaves Gitmo, and this process is not inconsistent with due process as defined by the Constitution.
I do appreciate David Cole and RonM’s comments. It takes courage to continue to persevere for the truth. Given that, it is distressing to hear how often that PE Obama’s supposed supporters are willing to throw him under a bus, already, for not doing this or not doing that.
There are bigger fish to fry. I suspect that we will soon see Obama’s hair go white, reflecting the enormous responsibilities that any US president faces in these modern times. I think time will show us that Bush was not nearly the demon so many thought he was, nor will Obama be the cure for all the things that were promised.
— Brian HayashiBig Surprise. Now that Obama has responsibilty for defending the USA against terrorism, suddenly the media awakens to the fact that Gitmo is necessary (or something equivalent to Gitmo, but with a different name). Obama will order Gitmo closed and then take 4yrs (or if re-elected, 8yrs) to do it. The issue of detaining unlawful combatants was carefully considered by President Bush–weighing the need for due process against the need to protect America and obtain actionable intelligence. Gitmo was a necessary tactic in this war. These are combatants who don’t follow the rules of war or the Geneva conventions; they should be detained until the war is over or until they can be released safely or transferred to other countries. Let’s see if Obama and Clinton can put their “Smart Power” to work and get all those countries objecting to Gitmo to take in a few terrorists. Better yet, get those Profs, and Bush-bashers objecting Gitmo to each take home a terrorist for keeps.
— miltownmanMy suggestion is to surgically implant a GPS-type location detector in their bodies. Then, release them. We will always know where to find them if need be.
— Marilyn