“Complexities behind the Guantánamo promise”. The Irish Times. November 18, 2008 – The second question – whether to charge or release them – is more problematic.
There is a case to be made for the preventive detention without charge of extremely high-risk detainees provided those detainees have had the opportunity to challenge the lawfulness of their detention before a court or, at least, an objective and impartial tribunal similar to a traditional court.
It may well be the case that a small number of individuals can be identified as especially high risk on a factual basis but may not cross the threshold of beyond reasonable doubt in a criminal trial because of defective evidence, for example. In cases of this kind, it appears puerile to insist on purism and on releasing those individuals; the so-called war on terrorism may be an overstated response to the terrorist threat, but that does not mean that such a threat does not exist and does not have to be countered.