As president-elect and now as president, Barack Obama has made it clear that he will close the Guantanamo Bay detention center. Closing the facility, which currently holds 250 or so alleged terrorists, involves a raft of hard decisions and trade-offs that won't get any easier simply because the new president's name is not Bush. The following is a checklist of the major questions President Obama will face, in rough sequential order, before he can shutter the camp:
Who must be released? Nobody contends that all of the current detainees at Guantanamo require continued incarceration. The Bush administration has already cleared approximately 60 of them for release or transfer to other countries. The Obama administration could assume some additional risk by letting others go. The first step in closing Guantanamo, then, will be to decide how many people truly must be held and how many must be held in American, rather than foreign, custody.
Where to release detainees? Where to send some of the releasable detainees poses an intractable problem. The Obama administration is legally barred from sending them to home countries that will torture or persecute them. The administration cannot easily set them free inside the United States, for some have terrorist backgrounds or connections, and the mere taint of having been called "enemy combatants" by the U.S. military will make them unwelcome. And the administration will have a tricky time convincing rights-protecting countries to resettle people deemed too dangerous to release here. The new president will thus need to figure out which detainees might be admitted to the United States and then leverage his substantial international prestige to persuade other countries to accept the rest. Ironically, the more willing he is to free detainees, the more difficult this problem will become.
Where should the remaining detainees be held? The new administration will presumably have to hold the remaining suspected terrorists in facilities in the United States. But where? They will likely end up in a prison on a military base, since it would be unsafe to hold them in normal prison populations. But few states will want to house Khalid Sheik Mohammed and his friends. And members of Congress will give NIMBY-ism a whole new meaning when it comes to keeping them out of their districts. If resettling nondangerous detainees will take careful diplomatic work abroad, resettling the dangerous ones in prisons domestically will require careful work with Congress at home.
How many of the remaining detainees can face trial? Continued detention over the long term for the remaining detainees will prove more palatable to domestic and international public opinion and the federal courts if detainees face criminal charges. But how many detainees have committed crimes provable in court using evidence judges will admit? It is critical both to identify publicly the group of detainees against whom prosecutors intend to bring charges and to bring those charges expeditiously.
What form of trial should be used? How many detainees can face trial will depend to some degree on which trial system the new administration ultimately deploys. There are three possibilities: ordinary civilian trials, military commission trials, and courts martial under revised rules of the Uniform Code of Military Justice. Each system has pros and cons.
Civilian trials of terrorists are the most legitimate. But they also can endanger civilian juries and judges, they have demanding procedural and evidentiary rules that make convictions difficult, and the pro-government precedents likely to emerge from terrorist trials will hurt ordinary criminal defendants. Military commissions have more flexible rules that theoretically make acquittals less likely. But they are now politically damaged and have in any event doled out some short sentences. The UCMJ could be modified to operate like military commissions and likely would be more legitimate in practice. But the Constitution's double jeopardy clause may prevent detainees already tried in military commissions from being retried in a UCMJ trial.
A further complication in assessing these options is that the more demanding the trial system chosen (for example, civilian trials instead of military commissions), the harder it will be to convict, which means fewer detainees tried and more held indefinitely by other means.
Under what theory can detainees who are not tried remain incarcerated? Detainees convicted of crimes will be incarcerated for the term of their sentence. But detainees not yet charged or who can't be charged must be held in some form of extra-criminal detention. The United States has held in military detention "until the cessation of hostilities" hundreds of thousands of enemy soldiers in prior wars and currently holds the Guantanamo detentions under this theory. It has also long used administrative detention systems to hold without trial dangerous persons like child molesters and people with infectious diseases. The rules historically associated with these forms of detention need amplification to ensure that mistakes are minimized and to legitimize very long-term detention of terrorists not subject to trial.
Only Congress, working with the president, can establish such a system. The first and hardest issue Congress must address is the definition of the enemy to be detained. At a minimum, this definition should include everyone in the command structure of the Taliban, al-Qaida, and associated terrorist organizations who poses a clear threat to the United States. Beyond that, a precise definition becomes very hard. Congress will also need to specify rules concerning evidence, access to counsel, and government information; the length of detentions; the frequency and scope of administrative review, judicial review, publicity rules; and many other features of a detention system.
Create a national security court? Many (including the two of us) have proposed the creation of a national security court composed of Article III judges to supervise and legitimize the detention process and possibly to serve as the forum for civilian terrorist trials. In either role, the national security court would reduce the burdens on and dangers to ordinary civilian courts and employ nimbler evidentiary and classification rules. The objections to a national security court (beyond objections to military or administrative detention generally) are that they imply a permanent state of crisis and have a checkered reputation in other countries. If the new administration goes this route for either detention or for trial, the institution's design will require sustained work with Congress.
What about acquittals and short sentences? Any of the trial systems above might result in short sentences for or the acquittal of a dangerous terrorist. In ordinary criminal trials, guilty defendants often go free because of legal technicalities, government inability to introduce probative evidence, and other factors beyond the defendant's innocence. In terror trials, these factors are exacerbated by the difficulties of getting information from the place of capture, classified information restrictions, and stale and tainted evidence.
The possibility of acquittals or short sentences is a problem for terrorist trials. The Bush administration reserves the authority to continue holding acquitted terrorists or even those convicted in the military detention system after their sentences have run. But this authority undermines the whole purpose of trials, and the Bush administration has never exercised it. Putting a suspect on trial can thus undermine detentions the government regards as important. For example, the government would have had little trouble defending the indefinite detention of Salim Hamdan, Osama Bin Laden's driver, under a military detention rationale. Having put him on trial before a military commission, however, it would have been unseemly to sustain his detention beyond the light sentence he is now completing back home in Yemen.
This conundrum gives the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates. Should the government loosen the rules for trial to make convictions easier, or should it rely more heavily on noncriminal detention? Hard call.
Wall off the system? The Obama administration will need to figure out the relationship between its domestic trial and detention system and the detainee system in the ongoing wars in Afghanistan and Iraq. The United States currently detains—without charge or trial and without access to lawyers or habeas rights—thousands of detainees in those two countries. These offshore detentions are perfectly legitimate under the Geneva Conventions, and in any event the resource-intensive system of trial and detention outlined above cannot feasibly be extended to thousands, much less tens of thousands.
But as the wars abroad drag on, many will ask why detainees abroad do not receive the same treatment as those at home. These questions will grow loud when the government stops bringing dangerous terrorists captured abroad to the United States, preferring instead to keep them outside our shores in the much less onerous and less scrutinized Geneva Conventions system. Closing Guantanamo will do the new president little credit if he is seen as having rebuilt it somewhere else.