III. Reject Preventive Detention as an Alternative to Prosecuting Terrorist Suspects

Some commentators have suggested that the United States cannot close Guantanamo unless Congress passes a law allowing suspected terrorists to be held indefinitely in preventive detention. Under these proposals, detainees will not be charged with a crime, but will be held based on predictions of future dangerousness. Proponents of this approach assume that the regular court system cannot adequately deal with those responsible for planning or carrying out terrorist acts, and that without such legislation, dangerous persons will be set free.

President Obama should reject this effort to "solve" the Guantanamo problem by merely moving it to the United States. A preventive detention regime established by legislation will suffer from many of the same fundamental defects that mar the Guantanamo system: detainees would be held without charge and without a meaningful chance to contest the evidence against them, and detention would be based not on actual criminal activity-such as plotting attacks-but on assumptions about future behavior that are impossible to rebut.

Rather, the Obama administration should embrace the federal criminal courts as the best-equipped-and time-tested-institution for handling persons suspected of terrorist activities.  

As described above, the federal court system is well-equipped to prosecute terrorist suspects, while at the same time ensuring that innocent individuals are not arrested and detained based on evidence and assumptions about future behavior that they are unable to know and unable to defend against. 

The Obama administration should:

(1)Reject proposals to detain suspected terrorists without charge as contrary to American values, unnecessary, and counterproductive.

(2)Publicly affirm the competence of the federal court system to prosecute terrorist suspects. 

(3)Invest in the law enforcement and intelligence-gathering personnel and equipment needed to detect terrorist plots and stop them before they are carried out.