Correction to This Article
An earlier version of this editorial incorrectly reported that Congress barred future terrorism suspects captured outside of the United States from being brought into the country. The prohibition applies only to detainees currently held at the U.S. Naval Base in Guantanamo Bay, Cuba.

Where Mr. Obama's order on terrorism detentions falls short

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Saturday, December 25, 2010; 6:08 PM

ALL DETAINEES at the U.S. Naval Base in Guantanamo Bay, Cuba, have the right to challenge their detentions in a U.S. court, thanks to a 2008 Supreme Court ruling. But no legal framework exists to challenge prolonged detentions after a federal court has weighed in once, leading to the possibility that a suspect could be handed a de facto life sentence without benefit of trial or further review.

The Post's Peter Finn and Anne E. Kornblut report that the Obama administration is preparing an executive order that would create intra-agency boards periodically to reassess the validity of prolonged detentions. Detainees would have the right to bring challenges and be entitled to representation. They would also be allowed access to some of the information against them.

The proposal is laudable for introducing a measure of fairness into the process, but it is shortsighted because it would apply only to the 48 detainees at Guantanamo who the administration says are too dangerous to release but who cannot be tried in a federal court or military commission. What about the next 48?

The proposal makes no provision for the likely capture of future suspects who may fit the same description. Removing lawful detention as an option could lock the administration into untenable and potentially dangerous situations.

Take, for example, the prospect of U.S. raids into Waziristan to capture al-Qaeda and Taliban fighters, which the New York Times reports are being contemplated. Would captives be detained - wrongly, in our opinion - under the Geneva Conventions as prisoners of war, even though they were captured outside of a recognized war zone? What if federal prosecutions and military commissions were off limits because of a lack of admissible evidence? Would the administration simply let the captives go, even though intelligence reports indicate that they pose a threat? Or would it take the path roundly and rightly criticized by civil libertarians and hold these new detainees beyond the rule of law?

The administration is concerned that a detention measure embedded into law could be wrongly used for offenses having no connection to terrorism. It worries that political opponents on Capitol Hill could insert odious provisions that the administration would be powerless to block. These are not trivial concerns, but they should be addressed by narrowly tailoring the law and displaying the level of leadership demanded in such matters. The administration should propose legislation, and its bill should cover future detainees as well as current inmates.


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