The decision on Monday by a federal judge to void dozens of habeas petitions by released Guantánamo detainees serves to remind us just how much activity and confusion surround those detained by the United States in the aftermath of Sept. 11, 2001. Our country, however, may have recently taken steps toward sorting out the confusion and finding a workable solution for those still detained at Guantánamo.
Reports have emerged that Republican Senator Lindsey Graham of South Carolina has been working with White House Chief of Staff Rahm Emanuel to cut a deal for how to handle the remaining detainees, as well as those who will be detained in the future as this country continues to cope with the threat posed by al Qaeda. From what has been reported, Graham’s proposal is worthy of consideration: In exchange for the Obama Administration using military commissions to prosecute those already held in connection with the 9/11 attacks, Graham would work with the president to craft legislation establishing a framework for handling all other terrorist detainees, including those already in custody and those yet to be detained.
While the particulars of Graham’s proposal should be evaluated in detail, we must evaluate it with an understanding about our current need both to gather intelligence and to bring offenders to justice. So far, one crucial point largely has been missed in the national conversation about how to deal with terrorism suspects: The framework that our country uses to handle suspects such as the Christmas bomber should not be overly influenced by the difficulties associated with prosecuting those already held at Guantánamo. The unique difficulties associated with the current Guantánamo detainees are unlikely to apply to those who will be detained in the future. In other words, we have gotten stuck in a backward-looking debate about Guantánamo rather than tackling the forward-looking debate about balancing our dual needs for intelligence gathering and prosecution.
The individuals currently detained at Guantánamo were picked up by our country at a time when prosecuting such individuals largely evaded the government’s immediate considerations. In the fearful and even frantic post-9/11 period, our country desperately sought information and intelligence from those whom it detained. As a result, detainees such as Khalid Shaikh Mohammed were treated (and apparently mistreated) as intelligence assets, not as eventual defendants in a prosecution of any sort.
Unsurprisingly, the executive branch is now finding it difficult to prosecute such individuals. Evidence of the type needed for a conviction — whether in civilian court or before a military commission — was neither properly gathered nor properly recorded. Questioning was not of the variety helpful in putting together a prosecutor’s case. And the length of time such individuals were held already has generated complaints by one defendant’s lawyer about a potential violation of his client’s constitutional right to a speedy trial.
These difficulties need not apply to terrorist suspects detained in the future. Indeed, our government has already adapted to the unique, dual priorities associated with terrorist detainees, assigning certain officials to begin laying the groundwork for eventual prosecutions, while leaving other officials to focus on intelligence gathering. Our government now understands that for every terrorist suspect detained, we want both immediate information and — eventually — conviction.
In turn, we must be careful not to overlearn the lessons of Guantánamo. The unique difficulties now facing the executive branch as it tries to figure out whether to prosecute the current Guantánamo detainees in civilian court, to prosecute them before military commissions or to continue to hold them indefinitely emerge from the equally unique circumstances of our country’s reaction to al Qaeda in the immediate wake of the devastating 9/11 attacks.
Going forward, our country can minimize — in fact, has already minimized — the tension between intelligence gathering and evidence gathering in the context of terrorist suspects. The discussion and debate certain to emerge in response to Graham’s proposed framework must acknowledge this essential difference between the difficulties associated with those currently held at Guantánamo and those who will be detained in the future.
Indeed, the type of detention associated with Guantánamo is rightfully becoming a framework of the past. What our country needs is a flexible framework for gathering intelligence from suspected terrorists and then legitimately detaining them, with an eye toward eventual prosecution in many, if not all cases. Fixating on the forum where that prosecution occurs puts the cart before the horse and obscures our country’s real needs in today’s conflict with al Qaeda. As we debate Graham’s proposal, we would do well not to overlearn the lessons of Guantánamo and, in so doing, find ourselves stuck with a framework designed for the past, not the future.
Joshua Alexander Geltzer is the editor-in-chief of the Yale Law Journal, the author of “U.S. Counter-Terrorism Strategy and al Qaeda: Signalling and the Terrorist World-View” and a second-year student at the Law School.