A new system of preventive detention? Let's take a deep breath.

• Author: Daskal, Jennifer

Some have argued that the detention center at Guantanamo Bay cannot be closed until the U.S. passes new preventive detention laws that would allow it to detain those who cannot be tried but are considered too dangerous to release. This article rejects these claims, concluding that the existing criminal justice system can adequately deal with those who the U.S. should be seeking to detain. The article also warns of the costs of trying to set up an entirely new system of detention without charge. The article cautions that such a system will negate many of the reputational gains associated with the closure of Guantanamo, will undoubtedly be subject to multiple court challenges and delay, and will put a continuous spotlight on those subject to this alternative detention system--allowing them to glorify themselves as martyrs, rather than forcing them to bear the opprobrium of a criminal conviction.

INTRODUCTION

Just about everyone agrees that Guantanamo should be closed. Secretary of Defense Robert Gates, Secretary of State Condoleezza Rice, and even President Bush have all said that they would like to close the detention facility at Guantanamo Bay, Cuba. (1) Five former secretaries of state--including Henry Kissinger, James Baker III, and Colin Powell--have urged the next U.S. president to move quickly toward this goal. (2) And President-elect Barack Obama has committed to do so. (3)

Some have suggested that the United States cannot close Guantanamo unless it passes so-called "administrative detention" laws that allow it to detain those who cannot be tried for any crime, yet are too dangerous to release. (4) Proponents present this as a middle-of-the-road solution to the problem of Guantanamo. Under this approach, detainees would be provided more procedural rights than they currently receive in Guantanamo, and the United States would be able to protect itself by detaining these and other potentially dangerous men taken into custody in the future, even if there is not enough evidence to convict them of a crime. Or so the thinking goes.

But over the past 230 years, the United States has endured two world wars, a lengthy cold war, waves of domestic terrorism, and a civil war that almost broke the nation apart, without passing legislation that would allow the state to detain people for extended periods based on a prediction of future dangerousness. In fact, the few executive-branch experiments with such programs--the quickly-reversed suspension of habeas corpus during the Civil War, the Palmer Raids of 1919-1920, the internment of citizens with Japanese ancestry during World War II, and, most recently, the large-scale detention of hundreds of men at Guantanamo Bay--have in one way or another been resoundingly repudiated as mistaken experiments that are contrary to the United States' commitment to due process and the rule of law.

Before the United States adopts an entirely new system of detention--that permits the government to hold citizens and non-citizens without a trial or even charging them with a crime--based on a prediction of future threat, several key questions need careful assessment.

1. WHO SHOULD THE UNITED STATES BE DETAINING?

   In 2001 and 2002, the United States answered this question broadly, without providing any clearly articulated criteria. In addition to the foot soldiers fighting to defend the Taliban's Afghanistan, the United States brought to Guantanamo those who may have once attended an al-Qaeda training camp, had some affiliation with an al-Qaeda member, or merely appeared to dislike the United States. (5) Hundreds were held for years without charge before ultimately being released, either because the United States determined they were too insignificant to detain or because they were innocent people caught up in the wrong place. (6) Others are still being held in Guantanamo--even though the United States has concluded that they should be released--because they cannot be returned to their home countries for fear of ill-treatment and the United States cannot find a third party to accept them. (7)

   As Guantanamo has proven, it is not good counterterrorism policy to bring every potential terrorism supporter into a long-term detention system in the United States. Mistakes are inevitably made, and innocent people detained, fueling the very anti-American resentment that terrorist recruiters feed upon. (8) Moreover, such a system is simply impractical. Assume, for example, that the United States continued down the road of trying to detain every possible al-Qaeda associate. The U.S. military could march through the streets of Riyadh or Islamabad, arrest and detain just about any dangerous looking male between the ages of twenty and thirty-five. After all, at least some portion of them might one day join anti-U.S, forces, or want to. But no prison is large enough to hold all of the angry young men in the world. A smart counterterrorism policy would instead focus on incapacitating tough to replace members of the al-Qaeda network--the leaders, financiers, and technological experts--and the operators who planned or carried out terrorist acts.

   The United States Army's new Field Manual on Counterinsurgency Operations provides the rationale for this more pragmatic--and effective--approach. It is simply not possible to kill and capture every enemy in a battle with a non-traditional enemy like al-Qaeda, nor is it necessarily a good idea. "Dynamic insurgencies can replace losses quickly," explains the Counterinsurgency Field Manual. (9) The only way to win, therefore, is to "cut off the sources of that recuperative power" by diminishing the enemy's legitimacy and appeal while increasing one's own. (10) The manual cautions that the United States loses its legitimacy, and therefore its ability to win the fight against al-Qaeda, if it engages in illegitimate actions. "Unlawful detention, torture and punishment without trial" are all cited as illegitimate actions to be avoided. (11)

   The lesson from the Counterinsurgency Field Manual is clear. Rounding up every young man who hates the United States is neither possible nor effective. Rather, it fuels animosity towards the United States and becomes a talking point and recruiting tool for future terrorists. While such a policy may take a few would-be terrorists out of circulation, it aids al-Qaeda's ability to recruit others.

   Even the Bush administration seems to have recognized the need for greater selectivity in its detention decisions. The mass flood of detainees sent to Guantanamo in 2002 has now slowed to a relative trickle. Just six detainees have been sent to Guantanamo since 2007. (12) According to Department of Defense press releases, one was involved in a 2002 attack in Kenya that killed thirteen people; (13) two planned and facilitated the movement of foreign fighters; (14) a fourth planned and directed al-Qaeda operations; (15) a fifth was described as "one of al-Qaeda's highest-ranking and experienced senior operatives;" (16) and the sixth reportedly served as "one of bin Ladin's most trusted facilitators and procurement specialists." (17) The government has claimed that each of these detainees has planned, participated in, or materially supported terrorist activity. Each could presumably be prosecuted for his actions. (18)

2. IS IT REALLY TRUE THAT THE CRIMINAL JUSTICE SYSTEM CAN'T HANDLE THESE CASES?

   Proponents of preventive detention generally start from the premise that the criminal justice system cannot successfully prosecute international terrorists. But the United States has successfully prosecuted and convicted dozens of persons for terrorist activity, both before and after September, 2001. Richard Reid, the shoe-bomber arrested in Boston's Logan airport after trying to blow up a transcontinental flight; (19) Zacarias Moussaoui, convicted of conspiring in the 9/11 attacks; (20) and Mohammed Saddiq Odeh, convicted for his role in the 1998 Embassy bombings in Tanzania and Kenya, (21) are now all behind bars for the rest of their lives. Others are less familiar but significant nonetheless: Masoud Khan, sentenced to life in prison for training to support jihad abroad; (22) Ahmed Ressam, sentenced to 22 years for smuggling and transporting explosives; (23) and Mohammed Marius Jabarah, sentenced to life for planning to blow up U.S. Embassies in Singapore and the Philippines. (24) The list continues. These men were all convicted by an established and reputable federal court system and are all now incarcerated in maximum security prisons..

   Some question the current system, arguing that this list is unconvincing. They say that terrorism prosecutions are too resource-intensive and messy, cannot effectively protect national security...