At Guantanamo Bay, Khalid Sheikh Mohammed and four co-conspirators will be arraigned Saturday before a military commission for their role in the 9/11 attacks. In Brooklyn, Adis Medunjanin awaits sentencing following this week's guilty verdict in his federal trial for plotting to blow up New York City subways. The two cases have rekindled the debate over whether to try terrorism suspects in federal court or military commissions. But the differences between these two forums pale in comparison to those between detainees who are charged with crimes and those who are not.
Most of the 169 remaining Guantanamo detainees will never be charged in any court. They will thus never be given what those accused of the most serious terrorist offenses receive: the opportunity to be tried and sentenced if found guilty.
For Mr. Medunjanin, a sentence could mean life imprisonment; for the 9/11 plotters it could mean execution. But for the vast majority of Guantanamo detainees, who are not accused of any terrorist acts, sentencing would provide a welcome opportunity to regain their freedom after more than a decade of legal limbo.
Take the case of Salim Hamdan, who was convicted in 2008 by a military commission of providing material support to al Qaeda. While Mr. Hamdan did not engage in any terrorist acts, he assisted the organization while serving as Osama bin Laden's personal driver. Had Mr. Hamdan not been prosecuted, he almost certainly would remain at Guantanamo, as current law permits the indefinite detention of anyone who is part of or substantially supported al Qaeda, the Taliban, or associated forces.
But because Mr. Hamdan was tried and convicted, the military court had to assess Mr. Hamdan's culpability in sentencing him. Given the five years he had already been imprisoned, it determined Mr. Hamdan should serve only an additional five months. Thus, a convicted war criminal is back home, while other detainees -- many with far more tenuous connections to al Qaeda -- remain at Guantanamo because they have never been charged with a crime.
All Guantanamo detainees, to be sure, can seek habeas corpus review of their confinement in federal court. However, not only are the procedural and evidentiary rules in habeas proceedings are far less protective of a detainee's rights than those in federal criminal trials or military commissions, but a habeas court's inquiry ends once it decides an individual meets the broad standard for indefinite detention.
Habeas corpus review thus makes no determination of how long a person should be held in light of his past acts or the future risk he poses. Nor does it distinguish among different detainees. Unlike a trial judge, a habeas judge must treat a Taliban foot soldier and the 9/11 mastermind the same.
The system thus allows for continued detention where it is no longer necessary. It also creates anomalies, perhaps the most troubling of which is that the government can confine less culpable detainees for longer periods of time by declining to charge them with a crime.
A simple solution would be for Congress or the Defense Department to require that a military commission charge be brought against all remaining Guantanamo detainees within a specified time period, such as six months to a year. The only exception would be for those detainees the government agrees are no longer subject to indefinite confinement but who remain at Guantanamo because the government has not yet found a suitable country to release them to.
This requirement should not pose a significant problem for prosecutors because the military commission charge of material support for terrorism criminalizes providing various forms of assistance to a terrorist group, including offering oneself as support. It thus covers essentially the same conduct for which individuals are being held indefinitely under the current detention standard.
Once charged, a detainee could go to trial or plead guilty. Any determination of guilt, however, would trigger a sentencing hearing, where a military panel would impose an appropriate term of confinement based on such factors as the detainee's relative culpability, degree of cooperation, acceptance of responsibility, and risk of recidivism.
While sentencing might result in continued imprisonment for some detainees, it might also require the release of others. Either way, the opportunity to be sentenced would help end the inequities of the current system of indefinite detention by assigning all prisoners a fixed term of confinement based on an individualized assessment of their actions.
The Obama administration has expended significant effort into making military commissions a viable alternative to federal trials. But no matter how much military commission procedures are improved, the system will remain fundamentally flawed as long as such a vast disparity exists between those who are prosecuted and those who are not. One way to narrow this gap is to provide all detainees with the opportunity thus far reserved for the most culpable: the chance to be judged and sentenced.