What do we do with these detainees?
The Justice Department must conduct a comprehensive review of all detainee records to determine whether there is any actual evidence of criminal activity. Where there is, detainees should be prosecuted in federal courts, which are well positioned to accommodate the government's legitimate national security interests without compromising the fundamental rights of defendants. Where there is not, detainees should be repatriated to their home countries or, if there is a risk of torture or abuse, transferred to countries that will accept them.
What about these detainees returning to the battlefield?
The Pentagon's own reports on detainees who have returned to the battlefield are unreliable and false according to its own data and prior reports – sometimes including duplicate names, names of people who were never at Guantánamo and people who have never left their homelands. Some of the “militant” activities in which former detainees are alleged to have engaged include nothing more than speaking to the press about their experiences.
What about detainees from unstable countries, such as Yemen?
No detainee who hasn’t been thoroughly vetted should be released, to Yemen or anywhere else. But continuing to detain individuals who have been deemed fit for release simply because they come from a certain country is illegal, contrary to our values, and does nothing to make the American people safer.
Is the U.S. justice system equipped to handle these cases?
The time-tested U.S. civilian courts are equipped to handle complex national security cases, protecting both sensitive evidence and fundamental rights. The United States has successfully prosecuted scores of terrorism suspects, both before and after September 11, including “Blind Sheik” Omar Abdel-Rahman for his role in the 1993 bombing of the World Trade Center, “shoe-bomber” Richard Reid, and Zacarias Moussoui for conspiring in the 9/11 attacks. These cases belong in courts that uphold due process and in which judges and attorneys are held to constitutional obligations and accountable to the rule of law. They should not occur in military commissions, which represent a second-class system of justice that falls short of providing the due process required by the Constitution.
What about moving detainees to a prison on U.S. soil?
While Guantánamo must be closed as soon as possible, it’s important that it be closed correctly. That means putting an end to the illegal policies it embodies, such as indefinite detention. Detainees who will be prosecuted in federal courts should be held in U.S. facilities before and after conviction, but should not be indefinitely detained on U.S. soil without charge or trial. If we just repeat that illegal policy at home, closing Guantánamo will be solely a symbolic gesture.
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