SOLUTIONS/STIMSON: What should the U.S. do about Gitmo?

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By Charles D. Stimson

Come Jan. 20, 2009, it will be President Barack Obama's prerogative to carry out his campaign promise and move to close the detention mission at Guantanamo Bay and halt military commissions.

Closing Gitmo properly will take time, and is not without risk. Closing Gitmo, however, is the "easy" part, compared to the question of how to handle the terrorists there and — more importantly — those who are picked up in the years ahead outside of Iraq or Afghanistan.

Put plainly: Simply closing Gitmo, without addressing the serious underlying challenges and questions regarding detention policy in this ongoing conflict, is just changing the ZIP code of where we keep dangerous terrorists.

Mr. Obama should seize the opportunity to put detainment policy on a surer footing in terms of the law, policy and public perception.

The answer is not, as some suggest, bringing all detainees into criminal courts. Some may be excellent candidates for trial in federal district court or traditional courts-martial; many are not. It is true that our anti-terrorism statutes have improved lately and that our track record trying terrorism in the courts is impressive, but despite the system's strength and flexibility, these improvements will only carry us so far. There are real questions as to whether these courts can always properly handle classified evidence safely and how the courts would deal with evidence picked up on the battlefield that may fall short of the standard rules.

On the other hand, the Bush administration and Congress treated the terrorist attacks of 9/11 as an act of war and so relied on the law of armed conflict as the foundation for detention. But this approach could never match a conflict of the duration and complexity as the war against al Qaeda and its affiliates.

What we need is a new, narrowly crafted administrative detention framework that is lawful, durable and internationally acceptable. Administrative detention is specifically authorized in the Geneva Conventions, even in non-international armed conflict which is what our Supreme Court says we are in in this battle against al Qaeda. The incoming administration must work with Congress to get this done. Fix the framework, and the ZIP code doesn't matter.

Creating it will be a challenge, though.

Administrative detention carries risks to both liberty and security. For that reason, our leaders should give much thought to the narrow class of persons subject to detention. Considerations like dangerousness, active or direct participation, membership in or support for an organization such as al Qaeda, past acts, and future intentions must all be part of the discussion. It should also only be used for those terrorists who cannot be safely prosecuted and not for anyone captured in the United States or for any American.

The next question is the procedures to employ. The Geneva Conventions do provide a good starting point. To begin with, 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 an Article 5 "battlefield" hearing at or near the time of capture. That's an important protection.

Once the Article 5 hearing official determines that a person is detainable, then the detainee, after lawful interrogation, should go before a "competent tribunal" to determine, in a military judicial setting, whether the person subject to detention should be detained. Although not legally required, detainees before the Article 5 tribunal should have assistance of military counsel, and their cases should be subject to robust judicial review. The basis for their detention should be reviewed periodically through a judicial process, including habeas.

Not even the Geneva Conventions, however, answer every question. Once you give future detainees an Article 5 hearing, and a "competent tribunal" determines that the detainee may be administratively detained, then what? How long do you detain the individual? How often do you review the basis of his detention? And if we capture hundreds of high-value terrorists, is this process even sustainable? Many experts, including those in uniform, think it is not. These, and other questions, must be answered soon.

One of the keys to the success of this process will be transparency. We must continue to allow the International Committee of the Red Cross to perform its valuable function and work with it and other organizations of good will.

Only after a new narrow administrative detention framework is in the works will it be possible to safely and responsibly begin closing the detention operations in Guantanamo.

Perhaps Mr. Obama's greatest initial challenge, and his first opportunity to demonstrate the seriousness of his approach to this conflict, will be to reject the calls from some of his supporters to "try them or set them free." This is a false choice, and it is dangerous. Already, some of those released have taken up arms against the United States and our allies. Better to try some, detain some, and set the right ones free.

If Mr. Obama has the wherewithal to overcome that contingent, he'll have taken the first important step toward his goal of cleaning out Guantanamo. More importantly, he'll have demonstrated a commitment to building the framework we need to confront the terrorist threat far into the future, all while upholding the rule of law and protecting human rights.

• Charles "Cully" D. Stimson was the deputy assistant secretary of defense for detainee affairs in 2006 and 2007. Now he is a senior legal fellow for the Heritage Foundation.