During the recent presidential campaign, then-Senator Barack Obama promised to close the Guan­tanamo Bay detention center and stated that some Guantanamo detainees should be prosecuted or transferred to other countries and that others should be detained "in a manner consistent with the laws of war."[1] President Obama already, on his second full day in office, has taken the first steps in that direc­tion by issuing an executive order calling for the clo­sure of Guantanamo "as soon as practicable" and the prosecution, release, transfer, or continued detention of all detainees housed there following review of their statuses.[2]

This action is bold, comprehensive, yet cautious. In some respects, it represents a continuation, and at most an acceleration, of many of the policies of the Bush Administration. Prior to January 20, some detainees were being prosecuted,[3] and others were transferred to other countries: In fact, that latter group comprises nearly two-thirds of all those who have been held at Guantanamo.[4]

More important is what has not yet been addressed. While the Obama executive orders allude to continued detention of some Guantanamo detain­ees, they address only the current detainees at Guan­tanamo. President Obama's bigger decision--one where he is more likely to modify previous practice-- concerns future detainees, not the fate of those already captured and held at Guantanamo Bay.

The Obama Administration will not be ending the practice of military detention. Military detention[5] of some detainees is appropriate, consistent with long historical practice, and a necessary and lawful tool in the current conflict.[6] True, as General David Petraeus and Secretary of Defense Robert Gates have essentially said, we cannot kill or capture our way to victory in this conflict.[7] Yet military deten­tion, properly calibrated and designed to comple­ment our broader national security and counterterrorism policy, is necessary, not only for some detainees currently detained at Guantanamo but also for future captures of high-value detainees.

Indeed, candidate Obama also pledged to con­tinue to build U.S. capacity and international part­nerships to track down, capture, or kill terrorists around the world, and this presumably entails holding additional detainees.[8] That promise should assure the American people that President Obama intends to protect us from those terrorists who seek to kill us. But it also begs several key questions:

• When the U.S. captures a high-value terrorist and, for whatever reason, cannot prosecute him, where will he be detained?
• Under what legal framework will he be detained?
• How will all this work given the shifting legal landscape since 9/11?

Answering those questions and crafting an acceptable legal framework that ensures the contin­ued safety of the American people is the difficult but necessary work ahead, and it is the substance of what the Obama Administration will have to confront as it forges a new durable policy and legal framework on detainees in the war on terrorism.

Defining the Issue

Winding down the detention operation at Guan­tanamo Bay in a responsible manner will be diffi­cult, will take more than just a couple of months, and requires making difficult decisions and trade-offs.[9] Indeed, President-elect Obama acknowl­edged that ending the detention mission at Guan­tanamo Bay will be difficult and, more significantly, that he would consider it a failure if he did not close Guantanamo by the end of his first term.[10] It is a challenge because the process actually has less to do with Guantanamo Bay detainees than with the question of how we wage war in the modern era against non-state actors who are actively waging war against us.

Guantanamo Bay is just a place--a place that admittedly has harmed our country's reputation and whose benefits arguably have come to be out­weighed by its costs. To be sure, the United States has gained valuable intelligence from some detain­ees at Guantanamo over the years and has kept those very same detainees from killing or injuring our soldiers or allies in our ongoing conflict. That intelligence has helped us to understand and fight this enemy more effectively, but its value has diminished over time. More important, that intelli­gence and security has strained diplomatic rela­tions, undermined the moral authority of the United States in the eyes of some, and raised dis­tracting domestic legal obstacles.

Simply ending the detention operations at Guan­tanamo addresses only one visible aspect of a broader post-9/11 detention legal framework for the incapacitation and lawful interrogation of ter­rorists. Closing Guantanamo or merely moving the detainees to the United States without addressing the serious underlying challenges and questions regarding detention policy in this ongoing conflict is essentially changing the ZIP code without con­fronting the broader challenges.

The new Administration has the opportunity, and an obligation, to build on the strategic ratio­nale, legal and policy underpinnings, and entire framework regarding how to hold accountable and incapacitate terrorists.[11]

It is important to recall that a key recommenda­tion from the 9/11 Commission Report was for the United States to engage our allies and develop a common approach to the detention and humane treatment of captured terrorists, drawing from Common Article 3 of the Geneva Conventions.[12] Much work has been done with respect to this key recommendation;[13] some remains.

Military detention of the enemy during armed conflict is authorized and legal. According to a legal adviser for the International Committee of the Red Cross (ICRC), such detention is an "exceptional measure of control that may be ordered for security reasons in armed conflict or for the purpose of protecting State security or public order in non-conflict situations, provided the requisite criteria have been met."[14] According to the author, "the exceptional nature of intern­ment lies in the fact that it allows the detaining authority to deprive liberty of persons who are not subject to criminal processes but nevertheless represent a real threat to security in the present or in the future."[15]

It is also just common sense. When our military enters armed conflict, however that is defined, it has the legal authority to use lethal force when nec­essary. It stands to reason that the military must also be able to detain the enemy in a lawful man­ner, all the while upholding the rule of law, protect­ing human rights, and adhering to applicable provisions of the Geneva Conventions.[16]

Military detention is not a right-wing proposi­tion; it is a time-honored, legal, proper national security tool during armed conflict. That fact is recognized across the political spectrum. On Janu­ary 6, 2009, Senator Dianne Feinstein (D-CA), along with Senators John D. Rockefeller IV (D-WV), Ron Wyden (D-OR), and Sheldon Whitehouse (D-RI), introduced Senate Bill 147, the Lawful Interrogation and Detention Act. The act, directed specifically at the detainees currently at Guantan­amo Bay, Cuba, specifically authorizes military detention for some detainees who cannot be pros­ecuted or transferred.[17]

Thus, despite what some have argued over the years, the United States is not required, by its inter­national obligations or otherwise, to "try them or set them free." This false choice is dangerous, and it comes with real consequences. It is widely known that some detainees released from detention in Iraq, Afghanistan, and Guantanamo have taken up arms against Americans and our allies and no doubt have committed further combatant activ­ity.[18] This risk of further combatant activity will always exist, and it is particularly acute in the cur­rent conflict.

Reducing that risk through lawful detainment is not always a controversial proposition. For years, the United States has captured, detained, and law­fully interrogated thousands of combatants within the political boundaries of Iraq and Afghanistan, and it will continue to do so for some time in Afghanistan.[19] Most detainees are detained to pre­vent further combatant activity against the U.S. or our forces--not tried in a criminal trial.

Beyond Guantanamo

With respect to terrorists captured in the future outside of Afghanistan, including by our allies or in a future conflict or other crisis, the detainment sit­uation is more complicated. Neither the criminal law nor the law of armed conflict provides compre­hensive and complete policy prescriptions in terms of how best to keep these combatants off of the bat­tlefield and lawfully interrogate them while upholding the rule of law, protecting human rights, and safeguarding our country.

Prior to September 11, 2001, terrorism was treated as a matter of criminal law. The limits of and flaws in that approach have been detailed in numerous articles.[20] It is true that our anti-terrorism statutes have improved over the years and that our track record of trying terrorism in the courts is impres­sive, but despite the system's strength and flexibil­ity, these improvements will carry us only so far.[21]

A recent report by Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, details over 100 terrorism cases successfully prosecuted in federal court since 9/11. The report covers many, but not all, of the important laws and legal and policy considerations regarding trying terrorism cases in federal district court. Yet it does not mention one case of a terrorist captured over­seas on the battlefield after 9/11 and tried in the U.S. courts, nor does it seriously address the issue of the use of hearsay in federal trials for battle­field captures.

Most important, the Human Rights First report downplays the risks associated with the inadvertent disclosure of classified evidence, including valuable (and expensive) sources and methods of intelli­gence gathering. In every case involving such evi­dence--and this would include some cases involving terrorists captured overseas--there must be a careful, sophisticated cost-benefit analysis conducted by the highest officials in the govern­ment before deciding to disclose certain evidence in courtroom proceedings. Trying some terrorists in federal court should be an option, and it is an option the Bush Administration should have used more often;[22] but it should not be the exclusive weapon in our arsenal for combating al-Qaeda and other unprivileged belligerents.

To its credit, the Human Rights First report does acknowledge that some detainees may properly be held under "the law of war for the duration of active hostilities to prevent them from returning to the field of battle, and without any effort by the government to file charges or impose punish­ment."[23] In other words, military detention has a place in this conflict.[24]

For the most part, the Bush Administration and Congress, in its Authorization for the Use of Mili­tary Force, recognized the terrorist attacks of 9/11 as an act of war, and the law of armed conflict was the foundation for the legal framework surround­ing detention. With respect to Guantanamo, the law-of-armed-conflict paradigm was challenged within weeks of detainees arriving in January 2002, and its limitations have become clearer during this long conflict.

Certainly, the law of armed conflict should and will provide the underpinnings for the detention framework in Afghanistan in the years to come, but it does not provide adequate answers to or proce­dural protections for detainees captured outside of Afghanistan and all of the issues that arise in a con­flict of this nature.[25]

A legal regime can only set the boundaries of permissible policy; it is not a substitute for policy decisions to resolve lingering questions. In the future, when we capture a high-value al-Qaeda operative somewhere outside of Afghanistan who plots acts of terrorism or trains fellow terrorists but has not committed a domestic crime that can be prosecuted in federal district court, a court-martial, or even a new national security court, do we release him? If not, should we detain him, and under what legal framework? Where will he be detained? It is highly unlikely that the government of Afghanistan (or any other country) will allow him to be detained inside their country. Should we bring him to the United States? If so, what is his legal status, and what framework is he held under?

Further, in many of these cases, we will want to lawfully interrogate a captured operative to gain tactical or strategic intelligence. How do those law­ful interrogations for intelligence reasons affect the potential for criminal prosecution? We may not be able to prosecute some of these individuals, and it may not be in our best interest as a country to try them because to do so might unreasonably risk exposing critical national security secrets.

A Future Framework

The answer, far beyond closing Guantanamo, is to solve the broader challenge of holding account­able and incapacitating terrorists in a detention framework that is lawful, durable, and internation­ally acceptable. As we capture future high-value terrorists outside of Afghanistan and conclude that some may not be prosecuted in our domestic courts, we will need a sustainable legal framework to detain them.[26]

Creating the right framework will be challeng­ing, but it is necessary. As a former Administration official in charge of detainee matters observed, detention carries risks to both liberty and secu­rity.[27] Much thought needs to be given to the char­acteristics of persons subject to detention.[28] Conceptual criteria such as (among others) danger­ousness, active or direct participation, membership in or support for an organization such as al-Qaeda, past acts, and future intentions must all be consid­ered and weighed before drafting an appropriate definition of who may be detained.[29] However, we must remain ever mindful that our service mem­bers are facing the enemy on numerous battlefields every day: These questions are not, and should not be treated as, merely academic.

As for procedural protections for future captures, under the law of armed conflict, if there is a ques­tion as to a detainee's legal status (e.g., a prisoner of war, a civilian, or some other class), the detaining authority must hold a hearing, similar to an Article 5 hearing provided to prisoners of war under the Geneva Conventions, at or near the time of capture. If the "Article 5" hearing officer finds the terrorist detainable, then he may be detained. Alternatively, the hearing officer could make a finding that the captured person does not meet the proper criteria and order him released after the hearing.

If the person is deemed detainable by the hear­ing officer, after a defined period of lawful interro­gation, the detainee should be given an Article 5- style "competent tribunal" hearing before a military judge where he should have assistance of military counsel.[30] If the military judge, after a full and fair hearing, decides that the detainee qualifies for fur­ther military detention, the detainee is thereafter detained pending periodic review.

There should be robust judicial appellate review, and the detainee should be afforded qualified free appellate counsel. The basis for his detention should be reviewed periodically.

Furthermore, military detention should be used only for those detainees who cannot be safely pros­ecuted.[31] This means, at the front end of the deten­tion matrix, that there must be a robust system in place to determine which cases are prosecutable and which ones are not.

As a legal matter, there is support for the argu­ment that the current Authorization for Use of Mil­itary Force (AUMF) authorizes the President to detain militarily a person captured in the United States.[32] However, as a policy matter, the proposed military detention framework should not apply to anyone captured in the United States, at least under current circumstances.[33]

Not even the Geneva Conventions or the princi­ples underlying them answer every question. Once you give future captures an "Article 5" hearing and a "competent tribunal" determines that the detainee may be detained, then what? Does the case get transferred automatically to a federal dis­trict court judge for "independent review," perhaps under a newly created national security court? And how long do you detain the individual? How often do you review the basis of his detention? According to the Geneva Conventions, a person subject to detention must have the basis for his detention reviewed periodically, but is that an appropriate standard in this case? I believe it is warranted.

Would this system even be workable if, for example, the United States captured hundreds of detainees at a time? And what impact will these robust new rules and procedures have in the next war against a state actor who will receive fewer safeguards or rights as a prisoner of war?

All of this must be done as transparently as possible.

Finally, the United States must continue to allow the International Committee of the Red Cross[34] to perform its valuable function vis-à-vis detainees, and we must continue to work with and engage the ICRC in a substantive, confidential diplomatic dialogue.

Conclusion

Shuttering detention operations at Guantanamo Bay will be only a symbolic gesture--or perhaps not even that--if the Obama Administration does not also address the broader challenge of lawfully incapacitating terrorists who are intent on waging war against us. The incoming Administration has the duty to think through the strategic rationale of military detention in the broader context of its counterterrorism policies.

Some detainees may be appropriate candidates for criminal prosecution in federal district court, in terrorists' court-martials, or even in a newly created national security court--as long as there is not an unreasonable risk of exposure of critical national security information. Other detainees at Guantan­amo Bay and those captured in the future will be appropriate candidates for military detention.

Achieving this new policy will take time. It will require the new Administration to use this "strate­gic pause" in military commissions, habeas corpus cases, and other ongoing matters to take stock of the best way forward.

We will see how Barack Obama responds to calls from some of his supporters to "try them or set them free." Will he make the case for a thoughtful military detainment policy, or will he give in to their dangerous demand? If Obama acknowledges that al-Qaeda members and others similarly situ­ated are not common criminals and that military detention is a lawful and necessary tool in this ongoing conflict, we will know that our new Presi­dent is serious about the threats aligned against us.

Charles D. "Cully" Stimson is Senior Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation. He also has served as Deputy Assistant Secretary of Defense for Detainee Affairs (2006-2007) and is a Commander in the United States Navy JAG Corps, reserve component.