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.
One promising option is the establishment of a special Article III national security court, an idea that has gained traction across the political spectrum. Andrew McCarthy, who prosecuted Omar Abdel-Rahman, has proposed such a court, and one of President Obama's legal advisers, Laurence Tribe of Harvard, has endorsed something similar. In such a court, classified information could be submitted to the judge in his chambers ex parte, with nonclassified summaries provided to the defendant; or classified evidence could be revealed to the defendant's lawyer only after the lawyer had obtained a security clearance.
Likewise, Congress could amend the Federal Rules of Evidence and the Federal Rules of Criminal Procedure, specifying the process due for alleged alien terrorists. The new procedures could modify discovery rights and evidentiary rules without offending the Constitution.
The Supreme Court has recognized the president's power to detain enemy combatants in time of war. And President Obama acknowledged in his executive order that there may be detainees who cannot successfully be prosecuted, but still pose a danger. The Obama administration may learn that to protect our national security we must use preventive detention, as we have for the past seven years. President Obama can fulfill his campaign promise to "close Guantánamo," but many of the most dangerous detainees may simply have to be transferred to a similar detention center with a different name.
Presuming detainees are moved to a military base or prison in the United States, they will inevitably seek to challenge their detention in federal courts. This summer, the Supreme Court ruled in Boumediene v. Bush that detainees held at Guantánamo could file habeas petitions in U.S. courts to contest their detention. This holding almost certainly will apply to detainees transferred into the United States. (Indeed, a federal judge just held a hearing to consider whether Boumediene reaches a military prison in Afghanistan where the United States holds approximately three times the number of detainees now at Guantánamo Bay.)
In the seven months since Boumediene, Congress has neglected to set up rules to govern these detention proceedings. It has failed to act despite pleas from both the executive and judicial branches: Former attorney general Michael Mukasey urged Congress "to pass legislation to ensure that the proceedings mandated by the Supreme Court are conducted in a responsible and prompt way." And the chief judge of the U.S. District Court for the District of Columbia asked Congress for "guidance sooner rather than later." These pleas fell on deaf ears. The response of the chairman of the Senate Judiciary Committee, Democrat Patrick Leahy, was to throw up his hands: "I don't know how we'd ever get anything this complex and get the kind of consensus needed to get something passed."
As a result, federal judges--with no particular national security expertise--have been compelled to make up rules for these proceedings case by case. Judges are left to decide how to handle classified information, witness testimony, discovery rights, and many other issues. And their decisions are bound to vary from courtroom to courtroom, introducing inconsistency and unpredictability. (A district court judge drafted guidelines, but they are discretionary.)
Congress should enact rules to govern suits brought by unlawful enemy combatants challenging their detention. It should assume that the process constitutionally due to alien enemies may be quite different from the process due to U.S. citizens in a criminal case. As the Supreme Court explained in United States v. Hamdi, "enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict."
With that in mind, there are at least three provisions that should be included to help protect our national security. First, our troops on the battlefield must not be hauled into court by unlawful enemy combatants. The rules could instruct that military personnel generally do not have to appear as witnesses in these proceedings, perhaps submitting affidavits in lieu of live testimony. Second, just as in detainee trials, classified information must be protected from falling into the hands of enemies. Rules governing habeas proceedings could resemble those for detainee prosecutions and provide for ex parte submission of classified information. Third, unlawful enemy combatants held outside the United States must not be permitted to enter our borders to appear at habeas proceedings. Mukasey warned of the "extraordinary" security effort required to transport a detainee to the United States. Rules could provide that an enemy combatant could attend the habeas proceeding and take the stand only via video link. Finally, if Congress sets up a national security court for detainee trials, it could provide that court with exclusive jurisdiction over detention proceedings.
Even releasing detainees who are no longer deemed to be a threat may prove easier said than done. For one thing, it may be difficult to discern who is no longer dangerous. According to the Pentagon, more than 60 former detainees have resumed their terrorist mission. For example, Abdul Ghaffar, a former Guantánamo detainee, returned to Afghanistan and allegedly became a leader of the Taliban. Similarly, after his release, Abdullah Mehsud plotted the kidnapping of two Chinese engineers in Pakistan. Yet another example, Mohamed Yusif Yaqub, reportedly organized a jailbreak in Afghanistan, as well as a nearly successful capture of the town of Spin Boldak. And these are men the United States determined were not a major threat.
In addition, for each detainee cleared for release, the Obama administration will have to consider carefully whether the receiving country is willing and able to prevent the individual from taking up arms. Some 40 percent of remaining Guantánamo detainees are Yemeni, and Yemen has a poor record in this regard. Three former detainees released to Yemen have been identified as the perpetrators of the bombing of the U.S. embassy there last September that killed at least 16 people. Although the government of Yemen has promised to institute a rehabilitation program for former detainees, a senior U.S. official expressed "significant concerns" about its capacity to follow through.
Worse yet, some detainees may not be accepted by any country. The new administration can either continue to detain these people while seeking an accommodating nation or release them into the United States. One district judge has already ordered 17 detainees from Guantánamo brought to the United States and released into our nation's capital. The government strenuously objected, arguing that detainee release into the United States "squarely conflicts with the immigration laws." These detainees have not yet been released in Washington only because the issue is on appeal.
Although President Obama has not specified his plans for detainees who cannot be returned to another country, it seems unlikely he will choose to release them within our borders. Secretary Gates recently called on Congress to pass a law providing "that if somebody is released from Guantánamo they cannot seek asylum in the United States."
According to the Bush Justice Department, the Immigration and Nationality Act already prohibits a court from ordering the release into the United States of an alien Guantánamo detainee. Moreover, our immigration laws bar entry to anyone who "has received military-type training . . . from or on behalf of any organization that, at the time the training was received, was a terrorist organization." This provision could cover many of the current detainees.
Despite these statutes, certain judges need further instruction on this point. Congress could revise the immigration laws, as Gates suggested, to deny Guantánamo detainees asylum in the United States. The bill could perhaps allow them to apply for entry to America if no accepting country had been found within a certain amount of time.
To conclude: To close Guantánamo, there must be comprehensive legislation covering detainee trials, continued detention, and release. A few days after the election, the New York Times ran a full-page ACLU ad urging Obama to close Guantánamo "on day one, with the stroke of a pen." If only reality were as simple as rhetoric.
Stephanie Hessler is a former constitutional lawyer for the Senate Judiciary Committee.