Obama's Prisoners Dilemma

On his second full day in office, President Barack Obama signed an executive order calling for the military detention facility at Guantánamo Bay, Cuba, to be closed within a year. The question is, how? Will the Obama administration insist that all detainees be either prosecuted or released, as Human Rights Watch and other groups have recommended? Or will it effectively move Guantánamo onshore by closing the facility in Cuba but continuing to detain certain individuals without trying or even charging them?

Obama's order of January 22, 2009, leaves this question unanswered. Although the directive calls for reviewing the cases of the roughly 240 individuals still at Guantánamo to determine who should continue to be detained, it defers any decision about the grounds on which those people would be kept in custody. It does not resolve whether detainees will be prosecuted in regular federal courts, or their detention will be extended without trial, either under a preventive-detention regime authorized by Congress or based on an argument similar to the Bush administration's claim that the United States can hold "enemy combatants" for the duration of the "global war on terror."

In an article published in the May/June 2008 issue of Foreign Affairs, I outlined the reasons why the criminal justice system is the best venue for prosecuting terrorist suspects, far superior to resorting to detention without trial. Under current U.S. law, the amount of evidence required to prove a suspect guilty of conspiracy to commit terrorism or of providing "material support" for terrorism is surprisingly small: to obtain a conspiracy conviction, for example, prosecutors need show only a criminal agreement between two people and one step, no matter how innocuous, in furtherance of that agreement. If the U.S. government could not make even that minimal showing, it would have little reason to believe the suspect guilty in the first place.

In addition, the fact that some of the evidence presented may touch on sensitive intelligence is no reason to eschew regular federal courts. Since the Classified Information Procedures Act was passed in 1980, the U.S. court system has acquired a great deal of experience balancing a suspect's due process rights and the government's legitimate interest in safeguarding intelligence secrets.

In contrast, a regime of preventive detention would be perilous for the liberty of U.S. citizens and others. It would enable the U.S. government to detain individuals for an indeterminate period based on predictions about the danger they might pose in the future, rather than on provable crimes that they had actually committed. Such a policy would be a radical departure from American legal traditions and a major breach in basic rights against arbitrary detention.

So far, there is no evidence that the Obama administration is inclined to go to Congress to seek authorization for a preventive-detention regime. But it may be tempted to continue to hold some detainees as "enemy combatants." To distinguish itself from the Bush administration -- which made that term infamous -- the Obama administration might argue that it intends to apply the concept less expansively. It could also maintain that the dangers of preventive detention are mitigated by the 2008 U.S. Supreme Court decision holding that all Guantánamo detainees should have access to the federal courts through petitions of habeas corpus.

But that would not be enough. Under the international laws governing armed conflict, a warring party may detain enemy combatants seized on the battlefield until the end of the conflict for the purpose of preventing them from returning to combat. Because of the limited geography of most battlefields and the relative ease of identifying combatants by their uniforms or weapons, this power historically posed relatively little danger to ordinary civilians. Many of the most significant detainees held at Guantánamo, however, were seized outside of Afghanistan, the only traditional battlefield of "the global war on terror." By pairing the designation of "enemy combatant" with the concept of a "global war on terror," the Bush administration made a case for holding detainees captured almost anywhere in the world. But with terrorists rarely distinguishing themselves from ordinary civilians, allowing the U.S. government to label someone an enemy combatant in the global war on terror has effectively meant granting it the unilateral power to detain virtually anyone anywhere, without charge or trial, and then holding him for as long as the war lasts -- that is, probably for his lifetime.