by MADELINE MORRIS with FRANCES A. EBERHARD and MICHAEL A. WATSULA

Two days after taking the oath of office, President Barack Obama issued an executive order mandating the closure of the Guantanamo detention facility within one year. As President Obama indicated in his speech of May 21, 2009, the closure of Guantanamo will require the release of some detainees, the prosecution of others, and the preventive detention of yet a third group. However unattractive one may find any of those categories and reasonable people may differ on which category makes them most uneasy each is necessary.

Legislation is required to structure a workable, fair, and constitutional legal framework for the closure of Guantanamo. That legislation can and should be constructed to apply with consistency across cases and across time—irrespective of the problems of tainted evidence particular to current detainees or problems specific to Guantanamo. Such legislation can provide a sound and lawful basis for resolving the quandaries of Guantanamo in a principled manner, without the creation of ad hoc rules.

The legislation required must—and can—1) delineate principled criteria for the designation of cases for release, prosecution, or detention; and 2) define a system of detention that honors our constitutional commitments, respects our international obligations, comports with the law of war, and protects national security. This article proposes such a framework for the closure of Guantanamo and, more fundamentally, proposes a comprehensive legal structure for counterterrorism prosecutions and detentions. Draft legislation, operationalizing the proposed framework, is appended to this article.

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