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
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