The Guantanamo 48

The Obama administration made it clear long ago that it intended to detain 48 Guantanamo inmates indefinitely and without trial. We have been critical of that policy both because the right to a trial is central to American notions of due process and because the administration’s criteria for indefinite detention are too broad. These are detainees the government considers too dangerous to be released, but who can’t be tried because the evidence against them either wasn’t preserved, was tainted by torture or doesn’t link them to particular terrorist plots.

Now it’s reported that the administration is preparing an executive order that will provide for regular review of whether these detainees should continue to be held. So-called periodic review boards would be composed of military and civilian members, and inmates would have the right to be represented by counsel.

This arrangement is an improvement over a system established by the George W. Bush administration, in which a panel of military officials evaluated requests for release and inmates had no legal representation. But it falls short of affording inmates the protections they would enjoy in a trial (even in a military commission).

As we have observed before, detention without trial should be an absolute last resort and must be overseen by the courts. It was a step forward when the Supreme Court in 2008 ruled that Guantanamo inmates had a constitutional right to file petitions for habeas corpus. But the court didn’t provide lower court judges with much guidance about how they should evaluate claims by those prisoners.

A better approach would be the creation of a special court to determine whether a prisoner at Guantanamo continued to pose a danger to this country. It’s probably unrealistic to expect a Congress that has thwarted Obama’s plans to close Guantanamo to create such a court. That places the burden on the administration to make the periodic review boards as much like a court as possible — perhaps by recruiting retired judges to serve on them.

The new review boards also should adopt stringent standards for deciding whether an individual will remain in detention. The criteria developed by an administration task force included “a history of association with extremist activity” or “strong ties (either directly or through family members) to extremist organizations.” The standard should be past involvement in violence and terrorism.

Even with those refinements, the idea of holding prisoners without trial is a disturbing departure from American notions of justice. But President Obama is adamant that he is “not going to release individuals who endanger the American people.” He should take pains to ensure that decisions about dangerousness are credible.