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Nuts and DeadboltsA blueprint for the closure of Guantanamo Bay.

By Jack Goldsmith and Benjamin WittesPosted Monday, Dec. 8, 2008, at 11:48 AM ET

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Under what theory can detainees who are not tried remain incarcerated? Detainees convicted of crimes will be incarcerated for the term of their sentence. But detainees not yet charged or who can't be charged must be held in some form of extra-criminal detention. The United States has held in military detention "until the cessation of hostilities" hundreds of thousands of enemy soldiers in prior wars and currently holds the Guantanamo detentions under this theory. It has also long used administrative detention systems to hold without trial dangerous persons like child molesters and people with infectious diseases. The rules historically associated with these forms of detention need amplification to ensure that mistakes are minimized and to legitimize very long-term detention of terrorists not subject to trial.

Only Congress, working with the president, can establish such a system. The first and hardest issue Congress must address is the definition of the enemy to be detained. At a minimum, this definition should include everyone in the command structure of the Taliban, al-Qaida, and associated terrorist organizations who poses a clear threat to the United States. Beyond that, a precise definition becomes very hard. Congress will also need to specify rules concerning evidence, access to counsel, and government information; the length of detentions; the frequency and scope of administrative review, judicial review, publicity rules; and many other features of a detention system.

Create a national security court? Many (including the two of us) have proposed the creation of a national security court composed of Article III judges to supervise and legitimize the detention process and possibly to serve as the forum for civilian terrorist trials. In either role, the national security court would reduce the burdens on and dangers to ordinary civilian courts and employ nimbler evidentiary and classification rules. The objections to a national security court (beyond objections to military or administrative detention generally) are that they imply a permanent state of crisis and have a checkered reputation in other countries. If the new administration goes this route for either detention or for trial, the institution's design will require sustained work with Congress.

What about acquittals and short sentences? Any of the trial systems above might result in short sentences for or the acquittal of a dangerous terrorist. In ordinary criminal trials, guilty defendants often go free because of legal technicalities, government inability to introduce probative evidence, and other factors beyond the defendant's innocence. In terror trials, these factors are exacerbated by the difficulties of getting information from the place of capture, classified information restrictions, and stale and tainted evidence.

The possibility of acquittals or short sentences is a problem for terrorist trials. The Bush administration reserves the authority to continue holding acquitted terrorists or even those convicted in the military detention system after their sentences have run. But this authority undermines the whole purpose of trials, and the Bush administration has never exercised it. Putting a suspect on trial can thus undermine detentions the government regards as important. For example, the government would have had little trouble defending the indefinite detention of Salim Hamdan, Osama Bin Laden's driver, under a military detention rationale. Having put him on trial before a military commission, however, it would have been unseemly to sustain his detention beyond the light sentence he is now completing back home in Yemen.

This conundrum gives the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates. Should the government loosen the rules for trial to make convictions easier, or should it rely more heavily on noncriminal detention? Hard call.

Wall off the system? The Obama administration will need to figure out the relationship between its domestic trial and detention system and the detainee system in the ongoing wars in Afghanistan and Iraq. The United States currently detains—without charge or trial and without access to lawyers or habeas rights—thousands of detainees in those two countries. These offshore detentions are perfectly legitimate under the Geneva Conventions, and in any event the resource-intensive system of trial and detention outlined above cannot feasibly be extended to thousands, much less tens of thousands.

But as the wars abroad drag on, many will ask why detainees abroad do not receive the same treatment as those at home. These questions will grow loud when the government stops bringing dangerous terrorists captured abroad to the United States, preferring instead to keep them outside our shores in the much less onerous and less scrutinized Geneva Conventions system. Closing Guantanamo will do the new president little credit if he is seen as having rebuilt it somewhere else.

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Jack Goldsmith, a professor at Harvard Law School, is the author of The Terror Presidency. Benjamin Wittes, a research director in public law at the Brookings Institution, is the author of Law and the Long War. Both are members of the Hoover Institution Task Force on National Security and Law. (Disclosure: Benjamin Wittes is serving as an adviser to the Department of Justice transition team. The views expressed here are his own and do not reflect the position of the transition in any way.)

Photograph of "Camp Justice" in Guantanamo Bay by Mandel Ngan/AFP/Getty Images.

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