On January 22, 2009, US President Barack Obama, in one of his first official acts, issued an executive order requiring the closure of the controversial detention facilities at Guantanamo Bay, Cuba and halting the equally contentious military commission proceedings. The order, an abrupt shift in US policy, requires a mandatory review of the factual and legal basis for continued detention of the remaining detainees with the stated goal of determining their final disposition. Dependent upon the review’s findings, possibilities for the detainees include release, transfer, prosecution in a US federal court, or, if necessary, some other form of disposition.

The executive order’s repudiation of the military commissions and acceptance of US federal courts as the preferred venue to try the “hard cases”—referring to the cases involving those detainees deemed unsuitable for release or transfer--is vindication for those who have long championed the need to replace the commissions with federal trials. Believing that military commissions are patently unfair, biased, and irreparable, opponents of the Guantanamo prosecutions view trials in US federal courts as the practical, equitable alternative. Additionally, proponents of this idea, concerned with the fierce international condemnation of the military commission system, argue that affording the most dangerous and difficult detainees the constitutional protections embedded in US jurisprudence will silence critics and restore the United States’ international moral stature. However, this faith in the “cure-all” capabilities of the US federal court system is misguided due to two glaring and irresolvable problems.

First, the detainees were not arrested in a domestic law enforcement operation. The individuals held at Guantanamo were captured in combat or transferred to US custody from another country. Information collected by service members on the battlefield, or by a nation such as Pakistan, was never envisioned for use in a US court. Most information relied upon to detain these individuals would, therefore, be excluded under the rules of evidence or unavailable due to its classification. The inadmissibility of the majority of evidence would force the government to either allow trials to proceed with insufficient evidence, most likely resulting in acquittals, or avoid trial and rely upon a preventive detention measure to indefinitely imprison detainees for security reasons. Acquittal, based not upon innocence but due to evidentiary and procedural issues, is simply an untenable result. Equally impractical is indefinite detention, even in a new location, as this simply presents the same troubling moral dilemmas derided by critics of Guantanamo.

Second, the belief that the international community, and in particular Muslim nations, would consider a trial in a US court, presided over by an American judge, as different from a military commission is naïve. Missteps in interrogation techniques coupled with extraordinarily negative reports concerning US detention policies and facilities have entrenched suspicion throughout the world of all American judicial institutions. Unwilling to believe that a Guantanamo detainee could receive a fair trial in a US venue, and unable to distinguish between a military commission and a federal court, the vast majority in the international community will perceive any US court proceeding as simply a smoke screen for the inevitable harsh penalty. Regardless of the forum, an American-centric trial will be viewed with skepticism and perceived as the United States invoking "victor's justice.”

The inability of US courts to adequately handle these trials and the political impossibility of continuing the military commissions raises the obvious, yet difficult question: what is the proper venue for trying the Guantanamo “hard cases”? Further, how does the United States balance its competing interests of holding accountable those culpable individuals while reclaiming its international leadership in promoting adherence to the rule of law?

The admittedly challenging answer is for the United States to shift away from a unilateral approach to the prosecutions and instead find an international forum to try the remaining Guantanamo detainees. International forums are generally accepted as the proper setting for dispensing justice when international atrocities, such as crimes against humanity, war crimes, and, arguably, terrorism, are committed. Recognition of the benefits and necessity of a collective response to transnational crimes has steadily increased within the global community since the genesis of international criminal proceedings at the Nuremburg trials through the recent and on-going International Criminal Court (ICC) hearings of the Congolese warlord Thomas Lubanga. The United States, historically an aggressive advocate for international criminal justice, agrees that international forums have unique capabilities and trump the jurisdiction of domestic courts in certain scenarios.

In recent comments to the Fletcher School of Law and Diplomacy, Mr. John B. Bellinger, III, the former Legal Adviser to the Secretary of State, noted that “we believe that fostering domestic institutions is central to the promotion and development of the rule of law. In appropriate circumstances, however, international tribunals can supply the resources or technical capacity that local courts may lack; they can provide legitimacy and fairness where local institutions are inchoate or mistrusted; and most important, they can provide the political will to carry out justice where that will is absent, or insufficient, at the domestic level.” Though Mr. Bellinger’s remarks were not intended to highlight the inadequacies of holding trials for the Guantanamo detainees in U.S. federal courts, his point is relevant to the current debate.