Guter, dean of Duquesne University School of Law in Pittsburgh, thinks a limited system of indefinite detention is needed, but acknowledges it will cause controversy.
Lawyers for the American Civil Liberties Union think any indefinite detention scheme would fly in the face of the Constitution. "This is a fundamental principle of the American system of justice, that the government cannot detain you indefinitely without proving to a judge that you committed a crime or are going to commit a crime," said Jameel Jaffer, director of the ACLU's national security project.
In a case highlighting the problem, the Supreme Court this week will consider whether to hear the case of Ali Saleh Kahlah Marri, the only person arrested in this country and still being held in a military brig as an "enemy combatant."
Marri, a native of Qatar, is accused of training with Al Qaeda forces in Afghanistan and volunteering for a "martyr mission." He arrived in the U.S. on Sept. 10, 2001, and was later arrested in Peoria, Ill.
ACLU lawyers are urging justices to rule that it is illegal "to seize and detain individuals within the United States" without charging them with a crime. But not all civil libertarians oppose the notion of holding prisoners indefinitely, if they are enemy combatants.
Georgetown University law professor David Cole, a critic of the White House, said the Supreme Court had upheld the military's right to hold captives even while striking down the Bush administration's detention system.
"There is a lawful basis for detaining individuals captured in a military conflict for the duration of that conflict," he said. "But you do have to give them a fair hearing and treat them humanely.
"Had the Bush administration abided by certain basic law-of-war principles at Guantanamo, it wouldn't be the international embarrassment it is today," Cole said.
To avoid the question of indefinite detention, the new administration may seek to place the detainees in one of two categories: those who can be tried and those who can be released to their home countries.
But not all can be returned to home countries, even if they are no longer considered a potential threat. The process of sending them home is slow, and some fear they would be tortured or killed upon their return. Because of that, the U.S. could be forced to take in a number of the men it has imprisoned at Guantanamo, some civil libertarians said.
