The Volokh Conspiracy - It is plausibly thought that Guantanamo Bay has become an albatross and for symbolic reasons must be closed.

As discussions continue, the following facts should be kept in mind.

1. If some detainees are released or tried in civilian courts, many others will not be released because they are too dangerous, and will not receive regular civilian trials because of security issues. Many other such people—highly dangerous and identifiable if at all only with confidential intelligence methods—remain at large, including Osama bin Laden himself.

2. The Obama administration will not repudiate its right to detain enemy soldiers for the duration of hostilities—an age-old incident of military power that virtually no one rejects. If you can kill enemy soldiers, you certainly should be able to detain them.

3. The Obama administration will also not repudiate the proposition that the conflict with Al Qaeda and affiliates is a military conflict. It follows that the Obama administration will retain the right to detain members of Al Qaeda "for the duration of hostilities," whatever that means, especially those scooped up outside the United States in war zones like Afghanistan.

4. It will continue to be necessary to detain Al Qaeda suspects without trying them for substantial periods of time, even if ultimately everyone will be tried or released. In some cases, it will take a long time to renegotiate repatriation agreements with countries of origin; in other cases, no country will accept them; in still other cases, military authorities will want to hold them while evidence is accumulated, hostilities are contained, or interrogations take place.

5. If current and future detainees are not kept in Guantanamo Bay, they will be kept somewhere else. Currently, the United States military holds detainees in prison camps in Afghanistan and (for the time being) Iraq. As far as I know, no one has proposed transferring these thousands of people to secure detention camps on American territory, as was done during World War II. These extraterritorial detention centers have no symbolic potency; there is no pressure to close them. Thanks to recent Supreme Court cases, detention on American territory creates legal hazards that the Obama administration will want to avoid--namely, that dangerous people imported from far away will have to be released onto American territory.

6. The foreign detention camps are dangerous, unpleasant places because they are located in dangerous, unpleasant areas. So shutting Guantanamo Bay will almost certainly increase the hardships both for future detainees and for the soldiers who must guard them—-even if the Obama administration takes a softer line than the Bush administration and detains fewer people for less time, and tries a greater portion of them in civilian courts.

Hurrah for symbolism!

	[Eric Posner, November 11, 2008 at 2:45pm] Trackbacks It is plausibly thought that Guantanamo Bay has become an albatross and for symbolic reasons must be closed. As discussions continue, the following facts should be kept in mind. 1. If some detainees are released or tried in civilian courts, many others will not be released because they are too dangerous, and will not receive regular civilian trials because of security issues. Many other such people—highly dangerous and identifiable if at all only with confidential intelligence methods—remain at large, including Osama bin Laden himself. 2. The Obama administration will not repudiate its right to detain enemy soldiers for the duration of hostilities—an age-old incident of military power that virtually no one rejects. If you can kill enemy soldiers, you certainly should be able to detain them. 3. The Obama administration will also not repudiate the proposition that the conflict with Al Qaeda and affiliates is a military conflict. It follows that the Obama administration will retain the right to detain members of Al Qaeda "for the duration of hostilities," whatever that means, especially those scooped up outside the United States in war zones like Afghanistan. 4. It will continue to be necessary to detain Al Qaeda suspects without trying them for substantial periods of time, even if ultimately everyone will be tried or released. In some cases, it will take a long time to renegotiate repatriation agreements with countries of origin; in other cases, no country will accept them; in still other cases, military authorities will want to hold them while evidence is accumulated, hostilities are contained, or interrogations take place. 5. If current and future detainees are not kept in Guantanamo Bay, they will be kept somewhere else. Currently, the United States military holds detainees in prison camps in Afghanistan and (for the time being) Iraq. As far as I know, no one has proposed transferring these thousands of people to secure detention camps on American territory, as was done during World War II. These extraterritorial detention centers have no symbolic potency; there is no pressure to close them. Thanks to recent Supreme Court cases, detention on American territory creates legal hazards that the Obama administration will want to avoid--namely, that dangerous people imported from far away will have to be released onto American territory. 6. The foreign detention camps are dangerous, unpleasant places because they are located in dangerous, unpleasant areas. So shutting Guantanamo Bay will almost certainly increase the hardships both for future detainees and for the soldiers who must guard them—-even if the Obama administration takes a softer line than the Bush administration and detains fewer people for less time, and tries a greater portion of them in civilian courts. Hurrah for symbolism!