The Magazine

What to Do About the Gitmo Detainees

The ball is in Congress's court.

Feb 2, 2009, Vol. 14, No. 19 • By STEPHANIE HESSLER
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On his second day in office, President Obama issued an executive order to close the Guantánamo Bay detention camp within one year. He also ordered a suspension of military trials for Guantánamo detainees--including the prosecution of Khalid Sheikh Mohammed, an admitted 9/11 plotter--and a review of the status of each detainee. According to the president, shutting the facility will end a "sad chapter in American history" and restore us to the "moral high ground." What it won't do is dispose of the 250 prisoners.

As even the New York Times finally acknowledges, there are "sobering intelligence claims against many of the remaining detainees." Indeed, just last month, five 9/11 plotters held at Guantánamo offered to plead guilty to many terror attacks. One implored Osama bin Laden to "attack the American enemy with all his power." Another detainee boasted, "I admit to you it is my honor to be an enemy of the United States." President Obama can close Guantánamo, but that won't make these terrorists go away.

What is needed now--as Secretary of Defense Gates has acknowledged--is for the executive branch to work with Congress to draft comprehensive legislation that will provide a framework for handling these detainees. Before Guantánamo is closed, this new framework must provide a legal structure for three kinds of cases. First, for detainees against whom there is sufficient admissible evidence of crimes, the administration may seek trials in our criminal justice system. Second, for detainees who cannot successfully be prosecuted but who still pose a danger, the administration may opt for continued detention somewhere other than Guantánamo. Third, detainees who cannot be tried and are determined to pose no further threat may be released to another country. Each option poses challenges that may be addressed by legislation.


Having rejected the military tribunals established by Congress, President Obama wants to explore trying some of the detainees in our federal courts. He has cited the prosecutions of the 1993 World Trade Center plotters as an instructive legal model. But it is likely that only a fraction of the dangerous detainees can be prosecuted successfully.

First, granting enemy combatants the same constitutional rights as U.S. citizens places an extremely high burden of proof on the United States, while affording alleged terrorists expansive discovery privileges. These privileges may include the right to call witnesses at trial--such as CIA agents, military personnel, and Department of Defense officials. Empowering alleged terrorists to summon these officers from the front lines to appear in court might impede our ability to prevent another attack.

Second, some of the evidence against detainees may be inadmissible in a criminal proceeding because it was obtained either by military interrogation or from a foreign source on promise of confidentiality.

Third, trials could disclose classified information, including sources and methods of intelligence gathering. In the trial of Sheikh Omar Abdel-Rahman for the 1993 World Trade Center bombings, for example, the prosecution had to share with the defense a list of unindicted co-conspirators. We know now that within 10 days this list of key operatives was in the hands of Osama bin Laden.

In addition to these obstacles, there is the fact that trying alleged terrorists after an attack does little to prevent the next one. Before September 11, the United States treated terrorists like garden-variety criminals. But because of the requirements of our criminal justice system, many dangerous enemies were able to avoid prosecution. Osama bin Laden, Khalid Sheikh Mohammed, and at least 18 other 9/11 suspects were actually under indictment in the United States long before 9/11. It did not stop them from attacking us on September 11.

Having recognized that the criminal justice system is inadequate to prevent terrorist acts, we changed our approach to terrorism on 9/11--shifting focus from punishment to prevention. Now that President Obama's primary responsibility is to keep Americans safe, treating alien terrorists as U.S. criminal defendants may seem less viable than it did on the campaign trail.

In drafting legislation, Congress must be mindful of its duty to protect national security by keeping classified information out of the wrong hands, and it must consider which due process rights should be afforded to alien unlawful enemy combatants.

Classified intelligence--both sources and technologies for conducting terrorist surveillance--must be prevented from reaching terrorists. The current Classified Information Protection Act is inadequate, for the simple reason that court orders do not deter terrorists from disclosing classified information.