Courtesy Of The New York Times
As a presidential candidate, Senator Barack Obama sketched the broad outlines of a plan to close the detention center at Guantánamo Bay, Cuba: try detainees in American courts and reject the Bush administration’s military commission system.
Now, as Mr. Obama moves closer to assuming responsibility for Guantánamo, his pledge to close the detention center is bringing to the fore thorny questions under consideration by his advisers. They include where Guantánamo’s detainees could be held in this country, how many might be sent home and a matter that people with ties to the Obama transition team say is worrying them most: What if some detainees are acquitted or cannot be prosecuted at all?
That concern is at the center of a debate among national security, human rights and legal experts that has intensified since the election. Even some liberals are arguing that to deal realistically with terrorism, the new administration should seek Congressional authority for preventive detention of terrorism suspects deemed too dangerous to release even if they cannot be successfully prosecuted.
“You can’t be a purist and say there’s never any circumstance in which a democratic society can preventively detain someone,” said one civil liberties lawyer, David D. Cole, a Georgetown law professor who has been a critic of the Bush administration.
Although the nation has long had limited legal procedures for detaining dangerous people who have not been convicted of a crime, the issue has become particularly controversial in the context of Guantánamo, where some detainees have been held for almost seven years without being charged.
Whether the Obama administration should push for a preventive detention law has inspired “a very hot and serious debate,” said Ken Gude, a national security scholar at the liberal Center for American Progress, adding, “I’ve had conversations with progressives who think it is a good idea and conservatives who think it’s a terrible idea.”
The president-elect’s transition office would not comment on whether that idea was even under discussion. But human rights groups have been mounting arguments to counter pressure that they say is building on Mr. Obama to show toughness, perhaps by echoing the Bush administration’s insistence that some detainees may need to be held indefinitely.
The international law of warfare provides authority for governments to hold captured enemy fighters until the completion of a conflict. Tens of thousands of German and Italian prisoners of war were held inside the United States during World War II.
But particularly inasmuch as the Bush administration invoked that authority as a basis for its much-criticized detention policies, a move by Mr. Obama to seek explicit authorization for indefinite detention without trial would be seen by some of his supporters as a betrayal.
Opponents of a preventive detention law say that continuing to treat captives as detainees instead of defendants in court would support terrorists’ self-image as warriors rather than criminals. And though the Guantánamo center might be closed, they say, the new law would effectively import Guantánamo and its image into the United States.
“Not only do you not need a system of preventive detention, but it would perpetuate the problem of Guantánamo and put us right back in the same dead end we are in now,” said Elisa Massimino, executive director of Human Rights First.
On the other hand, some proponents of such a law say it would clarify questions left murky by the Bush administration’s years of legal battles over Guantánamo. Benjamin Wittes, a fellow at the Brookings Institution, argued in a book published in June that Americans needed to cross a “psychological Rubicon” and accept the idea that preventive detention was a necessary tool for fighting terrorism.
“I’m afraid of people getting released in the name of human rights and doing terrible things,” Mr. Wittes said in an interview.
He said debates over Guantánamo had created a mythology that American law permitted detention only upon conviction of a crime. Locking up mentally ill people who are deemed dangerous, he noted, is an accepted American legal practice.
At the heart of the debate about whether a preventive detention law is necessary is uncertainty about the risks of criminal trials. Some lawyers warn that given the nature of evidence against some Guantánamo detainees, prosecutors may not be able to convict them.
“We have lots of information that is reliable, that tells us someone is a threat and that cannot be proved in court,” said Andrew C. McCarthy, a former federal terrorism prosecutor who is now director of the Center for Law and Counterterrorism.
Putting detainees on trial in American courts could be difficult in part because suspects captured in war do not receive protections, like warnings against self-incrimination, that are standard police practice. And much evidence against the detainees is classified; intelligence officials say it cannot be disclosed.
Further, some interrogation practices, including the simulated-drowning technique of waterboarding, might leave crucial government evidence unacceptable to American judges.
Jack L. Goldsmith, a former Justice Department official in the Bush administration who has written a book critical of some of the administration’s legal strategies, is among those calling for a preventive detention law.
Professor Goldsmith, who teaches at Harvard Law School, said in an interview that he believed the administration had correctly asserted a right to detain the men held at Guantánamo. But, he said, Congressional approval would “ensure that we can legitimate holding people for a long term.”
In the absence of such a law, any plan to move even some of the remaining 250 Guantánamo prisoners to the United States would require a careful analysis of the authority to hold the detainees, several of whom have said they would relish an opportunity to kill Americans.
In the end, the Obama administration may conclude that it is simply not feasible to seek a new preventive detention measure. Doing so could portray the new administration as following in the footsteps of President Bush, surely an unlikely goal as Mr. Obama sorts through his options.
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