It sounds like a good idea - President Barack Obama's recent decision to make a maximum security prison in northwestern Illinois the new home for a "limited number" of detainees currently held at Guantanamo Bay. Using the Thomson Correctional Center could hasten the critical day when the president closes Guant?namo.
But the devil is in the details. Although the American Civil Liberties Union has been advocating for the closure of Guantanamo for years, this is not the way we were hoping for it to happen. Alarmingly, the Obama administration has announced that it has no intention of releasing or prosecuting in federal court any detainee transferred to the Illinois prison; rather, it plans on housing detainees there indefinitely without charge or trial or for the purpose of military commission trials. In other words, the Obama administration is not closing Guant?namo and repudiating the lawlessness of the Bush administration; by all indications, it proposes to effectively create "Gitmo North" in the heart of America.
The creation of "Gitmo, Illinois" would contradict everything the president has said about the need for America to return to leading with its values. Supreme Court Justice Antonin Scalia recently wrote that "freedom from indefinite imprisonment at the will of the Executive" represents the "very core of liberty." Indefinite detention without trial will be viewed by Americans and throughout the world as an illegitimate continuation of the Guantanamo detention regime that so damaged our credibility as a nation that adheres to the Constitution and the rule of law.
The "Gitmo North" plan threatens to abandon the system of justice that has helped make America great in the eyes of the world, undercutting centuries of legal jurisprudence, the principle of innocent until proven guilty, and the right to confront one's accusers.
The Obama administration, like the Bush administration, maintains that it has the right to hold detainees without charge or trial under Congress' September 2001 "Authorization for Use of Military Force." But the fight against terrorists has no definable geographic or temporal limitations and may thus take place everywhere and forever.
Terrorists are criminals, not soldiers, and the entire world is not a battlefield. There is no question that the military may detain without charge battlefield combatants captured in Iraq and Afghanistan who were engaged in hostilities against the U.S. But no president should have the power to declare the entire globe a war zone and then seize and detain terrorism suspects anywhere in the world - including within the United States - and to hold them forever without charge or trial.
The plan for indefinite detention on U.S. soil and the continued use of military commissions also casts a disturbing shadow over the attorney general's recent decision to try terrorism suspects in U.S. federal courts.
Attorney General Eric H. Holder's decision reflected deserved confidence in America's justice system. Our federal courts and prisons have safely and effectively handled international terrorism cases before and since Sept. 11. The Justice Department has charged, tried and convicted approximately 200 defendants for international terrorism crimes, using the same federal courts that hold criminal trials every day. These defendants have ranged from a co-conspirator in the Sept. 11 attacks to people convicted for their roles in the 1993 World Trade Center bombing and the bombing of U.S. embassies in Africa.
Acting within the rule of law and applying federal criminal law, the Justice Department was able to obtain convictions that resulted in long prison sentences for these criminals, and the Federal Bureau of Prisons has made sure that there have been zero escapes. There is no reason to believe that the Justice Department cannot convict and imprison others who committed acts of terrorism.
The administration will be looking to Congress for legislative approval of this facility. What Congress and the president need to hear - loud and clear - is that simply moving Guantanamo policies from Cuba to Illinois, without a change in policy, is not the answer. Doing that just brings indefinite detention without charge or trial onto American soil.
After eight years of detaining hundreds of individuals at Guantanamo without giving them the basic due process rights that define our justice system, it is time to charge suspects where evidence exists, and repatriate and transfer the rest to countries where they won't be tortured.
Susan Goering is executive director of the American Civil Liberties Union of Maryland. Her e-mail is goering@aclu-md .org.