Benjamin Wittes joined experts in a New York Times running commentary to discuss the challenges the new administration will face in closing Guantánamo.
Needed: A New Detentions Law
The hardest single question in closing Guantánamo is what to do with those detainees whom the government believes in good faith to be too dangerous to set free yet who could not plausibly face trial before any tribunal of which America could stand proud. Today’s Times reports that the Obama transition “appear[s] to have rejected a proposal to seek a new law authorizing indefinite detention inside the United States.”
Such a rejection would be a real shame. The alternatives to creating a responsible new detention authority are all bad, and establishing reasonable authority to detain the enemy in a global struggle against terrorism would be neither radical nor inconsistent with America’s constitutional traditions.
If Obama has ruled out a new detention law, he has only three options for handling the group of hard core detainees. He can the let them go and try to manage the risk they pose by means other than detention. He can keep holding them under current detention authorities, rooted in the laws of war. If he pursues this second course, then the closure of Guantánamo will be something a sham. Guantánamo will have moved and shrunk, but the policy will not really have changed much. The third possibility is to transfer lots more detainees to the custody of other countries, which might do anything from freeing them to torturing them. None of these options should be attractive to the new president.
That’s why a new detention law warrants a second look. The war on terror is a hybrid conflict with attributes of both warfare and criminal justice but all of the hallmarks of neither. Like conventional warfare, there is the need to detain the enemy outside of the criminal justice system. But global counterterrorism shares with criminal justice the issue of genuine doubt in many instances about who the bad guys really are — hence the need for due process protections carefully designed to make sure that the people we lock up are actually the dangerous terrorists we believe them to be.
A carefully drawn administrative detention law could provide for both of these needs. It could give the executive branch flexibility that the criminal justice system rightly denies it in locking up individuals who mean to do America great harm, and it could also give those accused a robust set of procedural rights designed to protect against erroneous detention.
Unless Mr. Obama is willing to take on significant new risk, not having such an administrative detention law would not mean ending extra-criminal detention. The United States and its partners will continue to act to neutralize terrorism threats. Without new legal tools, in all likelihood that means there will still be some combination of detentions abroad, under less protective law-of-war standards, detentions by proxy governments, and targeted killing. These possible outcomes would present a dubious accomplishment for human rights.