On his second full day in office, President Barack Obama signed an executive order calling for the military detention facility at Guantánamo Bay, Cuba, to be closed within a year. The question is, how? Will the Obama administration insist that all detainees be either prosecuted or released, as Human Rights Watch and other groups have recommended? Or will it effectively move Guantánamo onshore by closing the facility in Cuba but continuing to detain certain individuals without trying or even charging them?
Obama's order of January 22, 2009, leaves this question unanswered. Although the directive calls for reviewing the cases of the roughly 240 individuals still at Guantánamo to determine who should continue to be detained, it defers any decision about the grounds on which those people would be kept in custody. It does not resolve whether detainees will be prosecuted in regular federal courts, or their detention will be extended without trial, either under a preventive-detention regime authorized by Congress or based on an argument similar to the Bush administration's claim that the United States can hold "enemy combatants" for the duration of the "global war on terror."
In an article  published in the May/June 2008 issue of Foreign Affairs, I outlined the reasons why the criminal justice system is the best venue for prosecuting terrorist suspects, far superior to resorting to detention without trial. Under current U.S. law, the amount of evidence required to prove a suspect guilty of conspiracy to commit terrorism or of providing "material support" for terrorism is surprisingly small: to obtain a conspiracy conviction, for example, prosecutors need show only a criminal agreement between two people and one step, no matter how innocuous, in furtherance of that agreement. If the U.S. government could not make even that minimal showing, it would have little reason to believe the suspect guilty in the first place.
In addition, the fact that some of the evidence presented may touch on sensitive intelligence is no reason to eschew regular federal courts. Since the Classified Information Procedures Act was passed in 1980, the U.S. court system has acquired a great deal of experience balancing a suspect's due process rights and the government's legitimate interest in safeguarding intelligence secrets.
In contrast, a regime of preventive detention would be perilous for the liberty of U.S. citizens and others. It would enable the U.S. government to detain individuals for an indeterminate period based on predictions about the danger they might pose in the future, rather than on provable crimes that they had actually committed. Such a policy would be a radical departure from American legal traditions and a major breach in basic rights against arbitrary detention.
So far, there is no evidence that the Obama administration is inclined to go to Congress to seek authorization for a preventive-detention regime. But it may be tempted to continue to hold some detainees as "enemy combatants." To distinguish itself from the Bush administration -- which made that term infamous -- the Obama administration might argue that it intends to apply the concept less expansively. It could also maintain that the dangers of preventive detention are mitigated by the 2008 U.S. Supreme Court decision holding that all Guantánamo detainees should have access to the federal courts through petitions of habeas corpus.
But that would not be enough. Under the international laws governing armed conflict, a warring party may detain enemy combatants seized on the battlefield until the end of the conflict for the purpose of preventing them from returning to combat. Because of the limited geography of most battlefields and the relative ease of identifying combatants by their uniforms or weapons, this power historically posed relatively little danger to ordinary civilians. Many of the most significant detainees held at Guantánamo, however, were seized outside of Afghanistan, the only traditional battlefield of "the global war on terror." By pairing the designation of "enemy combatant" with the concept of a "global war on terror," the Bush administration made a case for holding detainees captured almost anywhere in the world. But with terrorists rarely distinguishing themselves from ordinary civilians, allowing the U.S. government to label someone an enemy combatant in the global war on terror has effectively meant granting it the unilateral power to detain virtually anyone anywhere, without charge or trial, and then holding him for as long as the war lasts -- that is, probably for his lifetime.
Access to habeas corpus, or the right of detainees to challenge the legality of their detention, is an inadequate safeguard against abuse. Since habeas review is not a criminal trial, prosecutors need not prove beyond a reasonable doubt that a detainee committed a specific criminal offense in order to justify his detention. If the Obama administration convinces U.S. courts to accept the concept of an "enemy combatant" in the "global war on terror" as justification for detention, the U.S. government would have to establish only the most tenuous connection between the detainees and terrorism, allowing it to shift suspects out of the criminal justice system and hold them without charge as "enemy combatants" based on weakly supported assertions. Moreover, this power would extend to the entire world, permitting the detention without charge of people in the United States and other countries with well-functioning judicial systems, such as European Union member states. Such a step would seriously undermine the rule of law. Even if the Obama administration could guard against overreach itself, a dangerous precedent would be set, allowing potential abuse by future administrations.
Some academics, such as David Cole, argue that preventive detention is not, in fact, a deviation from the U.S. legal tradition, because material witnesses in criminal cases or sexual predators who pose a public danger are sometimes held preventively. But that argument misconstrues the type of detention at issue in terrorism cases. For example, material witnesses may be held only until they have testified, not for years on end. Similarly, U.S. courts have authorized the civil commitment of sexual predators or people who are found to be dangerous to the public -- but, to avoid undermining criminal justice guarantees, the courts permit such detention only in the case of a mental illness that prevents a person from controlling his behavior. No one can pretend that this characterization applies to all the detainees at Guantánamo.
If the Obama administration continues to hold terrorism suspects without trial, it will be extending the Bush administration's policy of fighting terrorism without regard to basic rights. For much of the world, Guantánamo has become more than a detention center in Cuba. It is the symbol of the wholesale violation of the rights of those detained. The simple act of moving detainees from Cuba to federal detention centers in, say, Fort Leavenworth, Kansas, or Florence, Colorado, will not convince anyone that Guantánamo has really been closed. Only the holding of regular trials in U.S. federal courts can do that.
A prosecute-or-release policy obviously carries some risk. Some detainees who cannot be prosecuted despite the modest proof required might still turn out to be dangerous. Indeed, the Pentagon claims that some ten percent of Guantánamo detainees already released have returned to terrorism, although, according to a paper published by Seton Hall University, that number includes those who have engaged in "propaganda warfare" by speaking about their experience at Guantánamo.
But keeping Guantánamo open, whether in its current state in Cuba or effectively moved to the United States, also entails risks. The world is full of angry youth who wish the United States harm, only a handful of whom are in Guantánamo. The safety of the United States and its citizens depends primarily on whether this vast pool of potential terrorists is tapped. For more than seven years, the mere existence of the detention center at Guantánamo has been a bonanza for terrorist recruiters. At the same time, it has discouraged the kind of international cooperation needed to protect the United States and its allies against terrorism. Eliminating this potent symbol of injustice would do far more to protect the United States than would the continued detention without charge of a small number of allegedly dangerous detainees. It is time to close Guantánamo for real -- not just the place, but the entire system of detention without trial.