Detention nation.

• Author: Greenberg, Karen J.
• Position: Barack Obama's detention policy

In February, four weeks into office, the Obama administration released its first prisoner in the war on terror--Binyam Mohamed. An Ethiopian citizen, Mohamed had been granted asylum status in Britain, a status which lapsed in 2004, around the time he arrived at Guantanamo Bay. Mohamed claims to have been picked up in Pakistan in April 2002, flown to Morocco where he was tortured--beaten, his penis and chest cut with a scalpel, his body burnt--and then sent on to Guantanamo, all apparently under American auspices. In this first release, there were some curious parallels with the Bush administration's version of emptying Guantanamo. Obama's team saw the transfer of Mohamed to UK custody, like the Bush White House saw the transfer and release of over 550 detainees, as a matter ultimately of diplomacy, not of legal process, one that relied upon political alliances. Moreover, the release took place outside of the military-commission proceedings. Although Mohamed was represented by Clive Stafford Smith, one of the most well-known of the detainee defense attorneys, his release, it seems, was essentially the decision of the president, not of any trial or review process. As the original commander at Guantanamo has said about the release of detainees under the Bush administration, it took a petty officer to put a detainee on a plane to Guantanamo and a presidential order to get him out.

If nothing else, the release of Mr. Mohamed was symbolic. President Obama introduced his presidency with three executive orders, all of which were meant to indicate that he placed the issues of Guantanamo and detention high on his list of priorities, despite the overwhelming demands of the financial crisis. He had decided to make a radical break with the Bush administration's policy on detention and interrogation, for which Guantanamo has become the most visible symbol. Those orders announced closing that prison within a year, a thorough review of detention policy and the determination to keep interrogations in accord with the current U.S. Army field manual's protocols. Keeping the link between addressing the wrongs of the past and creating viable future detention and interrogation procedures, the president appointed not only a task force for closing Guantanamo but also parallel groups for hammering out new policies.

But executive orders are not magic wands. The case of Binyam Mohamed does make one wonder: Just how different will the new president's approach to detention and interrogation be? How much leeway exists given the situation he has inherited? Can he actually make a break with the past while also conveying the sense that he is keeping the country safe? And, realistically, can he make this sharp turn and still maintain a good working relationship with the CIA (a political consideration that cannot be overlooked)?

We still have prisoners--and plenty of them. We still have no acceptable legal denomination for those under guard. We still have no legal mechanisms to try the detainees. And we still lack the kind of training and policies that prevent torture and abuse.

The costs of this cannot be overstated. Our policies have hindered America's ability to fight terrorism.

Alienating allies, not to mention stymieing the cooperation of Muslim communities, is what happens when you detain the ne'er-do-wells and bystanders along with the criminals absent due process. The strategy of being an independent player whose activities are secretive and whose judgments are noncollaborative denies America the essential aspect of capturing violent extremists: international cooperation. Terrorists' motives and deeds must be pieced together from various transnational sources. Counterterrorism is a global effort in which assistance and support between nations are essential.

If we course-correct, our international reputation can be salvaged. If we create viable policy, we will finally have the ability to separate the innocent from the guilty.

The world, and the nation, await a new direction. But in this case, plus ca change ... is the fear.

For starters, we might look at the legacy that has been left to the new administration. Where do we stand now in terms of military commissions, transparency about the nature of the detainee population and the issue of treatment--the main concerns that dominate the detention discussion?

To be sure, Obama inherited prisoners. And more, he inherited a seven-year failure to make exact numbers on the detainees available to the public. We only have approximations. About 240 detainees remain in custody at Guantanamo, a fraction of the total detainees in U.S. custody; those estimates range anywhere from 22,000 to nearly twice that number. In Iraq, the numbers hover around 13,000 as of late March 2009. There are 600 reported to be at Bagram Air Base in Afghanistan and approximately 2,300 at Pul-i-Charki outside Kabul. (According to a congressional report, up to 14,000 people may also have been victims of rendition and secret detention since 2001. Other reports estimate there have been double that number.)

To put this in perspective, during the Vietnam War the United States held approximately 35,000 people; during the Korean War, approximately 170,000 prisoners. But importantly, in neither instance was the United States the custodial country. Instead, the host countries--Vietnam and South Korea, respectively--were in charge of the detention efforts. America served in an advisory capacity only. In the war on terror, under the Bush administration, the United States decided to hold its own prisoners.

Decades of peace had reduced the need for prisoner-of-war guards, and the downsizing of the military in the 1990s meant that nonessential skills were phased out or downgraded. As a result, the United States did not have a viable guard force trained for this purpose...