January 3, 2009

PRESIDENT-ELECT Barack Obama has said he'll close the US detention center at Guantanamo Bay. The question is how. If the government has evidence that Guantanamo detainees have committed crimes, it should put them on trial in the federal courts, just like other suspected criminals. Those the government chooses not to prosecute should be safely repatriated or released.

But some are advocating a third option. They say the United States should pass a law that would allow preventive detention for Guantanamo detainees. This means they would be imprisoned, perhaps indefinitely, not for what they supposedly did, but for what the government fears they might do.

In an effort to minimize the radical nature of their proposal, some preventive detention advocates point to the commitment of so-called "sexually violent predators." If rapists and child molesters can be locked up without being convicted of a crime, they ask, why not suspected terrorists?

But the sexually violent predator laws are deeply flawed. They result in additional confinement for people who have already served lengthy prison sentences, and they can lead to long-term detention based on vague criteria. But whether such laws are good or bad, they are different from the proposed preventive detention system.

The Supreme Court has rightly been wary of government attempts to make an end-run around the constitutional protections of the criminal justice system - the right to the assistance of counsel, trial by jury, the presumption of innocence, and, most important, the requirement that the government prove beyond a reasonable doubt that the defendant violated a specific criminal law that was in effect at the time of his or her actions. As the Court said more than 20 years ago, "in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception."

In the case of sexually violent predators, the courts have carved out a narrow exception to this rule, and allowed detention of people who are both dangerous and suffer from a "mental illness or mental abnormality" that makes them unable to control their behavior. This second element is essential. In a 2002 case, the Supreme Court ruled that Kansas could not detain someone as a sexually violent predator, no matter how dangerous he might be, without this lack-of-control showing. This showing is necessary, the Court said, to distinguish those subject to civil commitment from those who should be handled by the criminal justice system. It is necessary to prevent the civil commitment exception from swallowing the rule that those whom the government wants to imprison must first be provided with the protections of a criminal trial.

In other words, a finding of dangerousness alone is not enough to permit indefinite detention.

There are other differences as well. Consistent with the idea that those detained are suffering from a mental illness, sexually violent predator laws generally require that suspects receive treatment for their condition, are housed in psychiatric facilities, and are otherwise treated like patients rather than prisoners. By contrast, some preventive detention proposals call for detainees to be housed in maximum-security prisons or military brigs. This starts to look a lot like punishment, not treatment.

Supporting Al Qaeda or the Taliban may make a person dangerous, but it is not a recognized mental illness. And no one contends that Al-Qaeda members are unable to control their behavior, or are most appropriately dealt with through psychiatric treatment. So proposals for a new preventive detention law for terrorist suspects simply cannot be justified by reference to the sexually violent predator system.

Preventive detention would be an unprecedented, unnecessary, and dangerous expansion of government power. The Guantanamo detainees should be either prosecuted or released.

David Fathi is the US program director at Human Rights Watch