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." 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.
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, and
others were transferred to other countries: In fact, that latter
group comprises nearly two-thirds of all those who have been held
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
The Obama Administration will not be ending the practice of
military detention. Military detention of some detainees is
appropriate, consistent with long historical practice, and a
necessary and lawful tool in the current conflict. 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. 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. 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
- 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
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. 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. 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.
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. Much work has been done with respect to
this key recommendation; 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." 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."
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.
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.
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.
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.
Most detainees are detained to prevent further combatant
activity against the U.S. or our forces--not tried in a criminal
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. 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.
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
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; 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." In other words, military
detention has a place in this conflict.
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
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
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
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.
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. Much thought needs to be given to the
characteristics of persons subject to detention.
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. 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. 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
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. 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. 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.
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 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
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,