Published by The Lawfare Institute
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First, give up on closing the Guantanamo Bay facility. The administration has missed its one-year deadline. The symbolic benefits of closure have diminished significantly, because the substitute for detention without trial on the island is detention without trial inside the United States with little if any change in legal rights. The main reason to close the facility is to fulfill a first-week presidential pledge that now, under different circumstances, is too costly.
Second, acknowledge that military detention will remain the primary basis for holding terrorists, and strengthen the system. The president will eventually need Congress's help, not only to put Guantanamo detentions on firmer footing but also to support the growing global fight against terrorists beyond traditional battlefields. The main legal foundation for targeting and detention in places such as Pakistan, Somalia and Yemen is the September 2001 congressional authorization to deal with the Sept. 11 attacks. But as dangerous terrorists have ever-dimmer connections to Sept. 11, the government is bumping up against the limits of what this authorization permits.
Third, stop using military commissions, which are a good idea in theory but have for nine years proved unworkable in practice. Military detention and civilian trials provide adequate legal bases for terrorist incapacitation.
Fourth, separate the legitimacy of civilian trials from the security of such trials. Much of the opposition to trying Mohammed in a New York civilian court was the potential for massive disruption in securing the downtown venue. Objections to civilian trials diminish if they are moved to more remote places in the New York and Virginia districts where the crimes occurred.
Fifth, do not seek the death penalty at trial. Many alleged terrorists plead guilty. Most of the hard legal and political problems in trials -- including the use of classified information and coerced confessions -- arise in the penalty phase, when defendants can seek and introduce any conceivably probative evidence. Many problems with terrorist trials go away if we simply deny terrorists their sought-after martyrdom.