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Jonathan Hafetz

Jonathan Hafetz

Posted: December 22, 2009 02:20 PM

Guantánamo Beyond Guantánamo

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Co-written by Jonathan Hafetz and Mark Denbeaux.

President Obama's planned transfer of some Guantánamo Bay detainees to Thomson, Illinois, might bring the administration nearer to its goal of closing the infamous off-shore prison. But, from all indications, it will do little to end the unlawful detention system Guantánamo embodies.

Last month, Attorney General Eric Holder announced that the United States would bring charges in federal court against five individuals accused of helping plot the 9/11 attacks, including alleged mastermind Khaled Shaikh Mohammed. Unlike the prisoners brought to Thomson, these men will be transferred from Guantánamo to the United States to face trial in accordance with American justice.

Holder's decision marks an important step towards restoring the rule of law. But in other ways, the new administration has continued rather than repudiated the failed counter-terrorism policies of the past.

President Obama, for example, is planning to try some Guantánamo detainees in military commissions. Although improved, the commissions remain a second-class system of justice, lacking both the due process guarantees and the credibility of federal courts. Moving the commissions on-shore will not solve the problem; it will only institutionalize it.

The Obama administration also has indicated that the United States will continue to hold some of the 210 remaining Guantánamo detainees, some of whom were captured far from any battlefield and were not engaged in direct hostilities against the U.S., without any trial, civilian or military. To do so, the administration is embracing the same malleable, elastic concept of a global "war on terror" that helped give rise to Guantánamo in the first place and that has no basis under the laws of war.

The Obama administration has said that it is simply preserving a menu of detention options: civilian trial, military commission, and indefinite detention. But no transparent--let alone legally coherent--criteria govern which option is employed, and the administration remains free to pick and choose among them. Often, that choice seems based on expediency rather than principle.

As a practical matter, this approach means that where the government believes it can easily convict, it goes to federal court; where it has some doubts about its evidence, it resorts to the laxer rules of military commissions; and where the government's case is weakest, it dispenses with a trial altogether.

These options, moreover, are not mutually exclusive. The administration has also suggested that even if a Guantánamo detainee is brought to trial and acquitted, he may be returned to military custody and held as part of the "war on terror." With this ultimate trump card, the government still wins even when it loses.

Indefinite detention is threatening to become Guantánamo's legacy. Never before has the United States sought to imprison individuals permanently without charge merely because it suspects they may be dangerous. Such a regime is anathema to the Constitution, which requires that those accused of wrongdoing be brought to justice through a criminal trial. It is also profoundly un-American, and should alarm conservatives and liberals alike.

Bringing suspected terrorists to trial in federal court is the right move. It honors the Constitution's guarantee of due process and maintains criminal trials as a check on the unlawful exercise of state power.

Federal courts have also proven highly capable of trying suspected terrorists without sacrificing basic constitutional rights. They not only boast high conviction rates but have shown they are adept at preventing the disclosure of classified or other sensitive information.

Holder's decision to prosecute the alleged 9/11 co-conspirators thus moves U.S. counter-terrorism policy in the right direction. But as long as the government retains the power to detain without trial, the impact of such decisions will be limited.

Those whom the government believes it can handily convict will receive full American justice, while those against whom the government lacks solid evidence will receive something considerably less. The inequities of this multi-tiered detention system will persist whether prisoners are held at Guantánamo or a "new Guantánamo" inside the country. Simply closing Guantánamo without remedying its underlying flaws will not restore the rule of law, but perpetuate a larger detention system that remains outside it.

Jonathan Hafetz, an attorney with the American Civil Liberties Union, and Mark P. Denbeaux, a professor at Seton Hall Law School, are the editors of The Guantanamo Lawyers: Inside a Prison Outside the Law.