Obama's Prisoners Dilemma

Access to habeas corpus, or the right of detainees to challenge the legality of their detention, is an inadequate safeguard against abuse. Since habeas review is not a criminal trial, prosecutors need not prove beyond a reasonable doubt that a detainee committed a specific criminal offense in order to justify his detention. If the Obama administration convinces U.S. courts to accept the concept of an "enemy combatant" in the "global war on terror" as justification for detention, the U.S. government would have to establish only the most tenuous connection between the detainees and terrorism, allowing it to shift suspects out of the criminal justice system and hold them without charge as "enemy combatants" based on weakly supported assertions. Moreover, this power would extend to the entire world, permitting the detention without charge of people in the United States and other countries with well-functioning judicial systems, such as European Union member states. Such a step would seriously undermine the rule of law. Even if the Obama administration could guard against overreach itself, a dangerous precedent would be set, allowing potential abuse by future administrations.

Some academics, such as David Cole, argue that preventive detention is not, in fact, a deviation from the U.S. legal tradition, because material witnesses in criminal cases or sexual predators who pose a public danger are sometimes held preventively. But that argument misconstrues the type of detention at issue in terrorism cases. For example, material witnesses may be held only until they have testified, not for years on end. Similarly, U.S. courts have authorized the civil commitment of sexual predators or people who are found to be dangerous to the public -- but, to avoid undermining criminal justice guarantees, the courts permit such detention only in the case of a mental illness that prevents a person from controlling his behavior. No one can pretend that this characterization applies to all the detainees at Guantánamo.  

If the Obama administration continues to hold terrorism suspects without trial, it will be extending the Bush administration's policy of fighting terrorism without regard to basic rights. For much of the world, Guantánamo has become more than a detention center in Cuba. It is the symbol of the wholesale violation of the rights of those detained. The simple act of moving detainees from Cuba to federal detention centers in, say, Fort Leavenworth, Kansas, or Florence, Colorado, will not convince anyone that Guantánamo has really been closed. Only the holding of regular trials in U.S. federal courts can do that.

A prosecute-or-release policy obviously carries some risk. Some detainees who cannot be prosecuted despite the modest proof required might still turn out to be dangerous. Indeed, the Pentagon claims that some ten percent of Guantánamo detainees already released have returned to terrorism, although, according to a paper published by Seton Hall University, that number includes those who have engaged in "propaganda warfare" by speaking about their experience at Guantánamo.

But keeping Guantánamo open, whether in its current state in Cuba or effectively moved to the United States, also entails risks. The world is full of angry youth who wish the United States harm, only a handful of whom are in Guantánamo. The safety of the United States and its citizens depends primarily on whether this vast pool of potential terrorists is tapped. For more than seven years, the mere existence of the detention center at Guantánamo has been a bonanza for terrorist recruiters. At the same time, it has discouraged the kind of international cooperation needed to protect the United States and its allies against terrorism. Eliminating this potent symbol of injustice would do far more to protect the United States than would the continued detention without charge of a small number of allegedly dangerous detainees. It is time to close Guantánamo for real -- not just the place, but the entire system of detention without trial.