In January, a government task force determined that almost 50 detainees at the prison at Guantanamo Bay will be held indefinitely without trial because they are too dangerous to release. In December, President Obama insinuated that the prison at Guantanamo Bay was nearing closure, and that all remaining detainees would either be tried, released, or transferred to the Thomson Correctional Facility in Illinois. This latest news is evidence that the issue of what to do with the detainees is still riddled with very serious and difficult questions.
The Obama administration has the seemingly intractable problem of wanting to eliminate or legitimize the detainee situation, but at the same time being saddled with prisoners that are simultaneously un-prosecutable and too dangerous to release. Detention without trial is a concept that is bothersome to me, but I believe that it is possible to create a legitimate system by which we can hold terrorists for longer periods of time while we attempt to put together a case against them.
Prolonged detention without trial is commonly referred to as “administrative detention” and it is not a novel idea. Countries like Ireland and Australia use an administrative detention system for immigration purposes. Israel, a country that has struggled with terrorism since its inception, has an administrative detention system aimed at combating terrorist threats. In the Israeli system a suspected terrorist is apprehended and a military judge evaluates intelligence to determine whether he can be held without trial. A six month detention period is initially authorized, but the detention can be renewed indefinitely based on the evidence against the detainee.
The U.S. has no official administrative detention system for terrorists, but if we start holding terrorists without trial an official system with defined processes and controls should be created. Human and civil rights groups may disagree, but I think it is possible to fashion a process that promotes national security goals and takes into account the rights of those detained. The ultimate goal guiding any administrative detention system should be prosecution of those detained, and the cornerstone of the system would need to be judicial review.
A judge should preside over a hearing in which the government presents all relevant intelligence information against each detainee, with the detainee being able to present evidence to rebut the government’s case. Legal counsel should be made available to assist the detainee in his defense. Israel’s seems to have a workable timeframe that allows for review of each detainees case every six months at which point the detention is renewed or release is granted; however, indefinite renewal of the detention should not be part of a U.S. system. Also, the burden on the government to justify further detention should increase every time it seeks renewal or maybe every other time it seeks renewal. Because the ultimate goal of the system should be prosecution of the detainee, the number of renewals should be capped so that if no viable prosecution can be put together within a certain time period the detainee is released.