Responding to news that President Barack Obama is issuing an executive order that will immediately suspend the military commission system at Guantanamo Bay and shut down the entire camp within a year, Vincent Warren, the executive Director for the leftist Center for Constitutional Rights told the Los Angeles Times, “It only took days to put these men in Guantanamo. It shouldn’t take a year to get them out.” Warren is dead wrong on so many levels. As President Obama has been increasingly more willing to acknowledge after the campaign, closing Guantanamo is “more difficult than I think a lot people realize.”
But the real issue goes way beyond Guantanamo Bay. As a candidate, President Obama promised to continue to track down, capture, or kill terrorists around the world. Unless he plans to kill all of them, this will necessarily entail holding additional detainees that will never be near Cuba. The real questions the Obama administration must answer are: When the U.S. captures a high value terrorist and, for whatever reason, cannot prosecute him, where will he be detained? Under what legal framework will he be detained? And how will all this work given the shifting legal landscape since 9/11?
Groups like Warren’s CCR and the ACLU have long called for the detainees at Guantanamo to be released or prosecuted in criminal court. But these simplistic calls ignore real world realities. Trying some terrorists in federal court should be an option—and it is an option the Bush administration should have used more often — but it can not be the exclusive weapon in our arsenal for combating al Qaeda and other unprivileged belligerents. The rules of evidence in our civilian courts, particularly the hearsay rule, makes it next to impossible to introduce evidence for battlefield captures. Civilian trials would also run the risk of inadvertent disclosure of classified evidence, including valuable (and expensive) sources and methods of intelligence gathering.
An otherwise excellent report by Human Rights First downplays these risks of civilian prosecutions but does go on to conclude that some detainees may properly be held under “the law of war for the duration of active hostilities to prevent them from returning to the field of battle, and without any effort by the government to file charges or impose punishment.” In other words, military detention has a place in this conflict.
But our detention policy does need a few framework. If there is a question as to a detainee’s legal status, the detaining authority must hold a hearing, similar to an Article 5 hearing provided to prisoners of war under the Geneva Conventions, at, or near, the time of capture. There should be robust judicial appellate review, and the detainee should be afforded qualified free appellate counsel. The basis for his detention should be reviewed periodically. Furthermore, military detention should also only be used for those detainees who cannot be safely prosecuted.
Looking at the full challenge facing the Obama Administration, Heritage Senior Legal Fellow and deputy assistant Defense secretary for detainee affairs Cully Stimson advises:
Guantanamo Bay is just a place, a place that has, admittedly, harmed our country’s reputation and whose benefits have come to be arguably outweighed by its costs. To be sure, the United States has gained valuable intelligence from some detainees at Guantanamo over the years and kept those very same detainees from killing or injuring our soldiers or allies in our ongoing conflict. That intelligence has helped us better understand and fight this enemy. But the value of that intelligence has diminished over time. More importantly, that intelligence and security has come at a high cost, morally, legally, security-wise, and diplomatically.
The answer, far beyond closing Guantanamo, is to solve the broader challenge of holding accountable and incapacitating terrorists in a detention framework that is lawful, durable, and internationally acceptable.
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