After Guantánamo

The Case Against Preventive Detention

These days, it seems, everyone wants to close Guantánamo. In January 2002, the Bush administration created a detention camp at the Guantánamo Bay Naval Base in Cuba to imprison what former Secretary of Defense Donald Rumsfeld called "the worst of the worst" terrorism suspects. The facility has since become an embarrassing stain on the United States' reputation. With some inmates now having endured more than six years of detention without charge or trial, and with no end to their ordeal in sight, Guantánamo has come to symbolize Washington's flouting of international human rights standards in the name of fighting terrorism. Now, even President George W. Bush says he wants to shut it down.

Rumsfeld's claim notwithstanding, more than half of the 778 detainees known to have passed through Guantánamo have been released, and many others deserve to be. But there is a hard-core group -- the Bush administration speaks of some 150 -- who have allegedly plotted or committed acts of terrorism or would do so now if they could. Shuttering Guantánamo would force the government to decide what should be done with these allegedly dangerous individuals. Should they be given criminal trials? Or should they, as a growing number of lawyers and scholars suggest, be subjected to a system that permits detention without charge or trial because authorities believe they might pose a future threat -- a system known as administrative, or preventive, detention?

At its core, this is a debate over whether the United States' criminal justice system can handle terrorism cases or whether due process should be sacrificed in the name of security. The stakes for the U.S. criminal justice system and the future of constitutional due process protections are enormous.

SECURITY AND LIBERTY

Many countries grapple with the dilemma of balancing national security and the rights of the accused. Authoritarian states have concluded that the best way to address serious security threats

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