New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Issues in Legal Scholarship, Symposium: New Directions for the Department of Justice , Article 1.

Abstract

Closing Guantánamo presents a daunting challenge, both politically and practically. The detainees cannot be transferred readily to other locations abroad, and yet many commentators insist that they are too dangerous to be held within the United States. Under current law the detainees cannot continue to be held unless they are charged with crimes; yet the existing military commission system is unsustainable, and many detainees allegedly are impossible to prosecute in traditional courts without jeopardizing classified information. These immediate issues are also symptoms of a more basic problem – the concept of a "global war on terror." Clear thinking about solutions to Guantánamo cannot begin in the absence of clear thinking about the legitimacy of the global war paradigm.

The immediate need to address Guantánamo and the broader imperative to find a sustainable framework for the future can both be met by a straightforward principle – the unqualified acceptance of pre-9/11 rules of international law and domestic due process. The difficulties attributed to that traditional approach are not wholly imaginary, but they have been misunderstood and shamelessly exaggerated. Familiar rules and institutions, properly managed, possess ample resources to cope with the challenges of modern terrorism.

Date of Authorship for this Version

March 2009