President Barack Obama ordered the U.S. prison camp for suspected
terrorists at Guantanamo Bay, Cuba, closed within a year and banned
intelligence agencies from using the harshest interrogation
techniques.
The president also formed an interagency task force to recommend
options for the detention and questioning of enemy combatants, and he
ordered the Central Intelligence Agency to close any secret prisons
that may still be operating.
-raghu.
The issue is *not* whether Guantanamo should be shut down. It is what to
do with the people who were locked up in it.
http://theenvelope.latimes.com/la-na-gitmo24-2008nov24,0,1351682.story
Closing Guantanamo prison may be the easy part for Obama
Much harder will be sorting out the legal complexities of holding,
prosecuting, transferring or releasing the roughly 250 prisoners.
By Julian E. Barnes and David G. Savage
November 24, 2008
Reporting from Washington — President-elect Barack Obama's vow to close
the U.S. detention center at Guantanamo Bay, Cuba, cheered human rights
organizations and civil libertarians, but could force the new
administration to consider a step those groups would abhor.
Some Obama advisors predict that his administration may have to decide
whether to ask Congress to pass legislation allowing a number of
detainees to be held indefinitely without trial. But civil libertarians
think that even a limited version of such a proposal would be as much at
odds with U.S. judicial custom as the offshore prison.
The debate suggests that the decision to close Guantanamo may be the
easy part for Obama. Much harder will be sorting out the legal
complexities of holding, prosecuting, transferring or releasing the
roughly 250 prisoners.
Obama has never embraced an indefinite detention law, and his supporters
think he will take steps to avoid that outcome. However, sharp divisions
have emerged among Obama allies on how to proceed. The civil
libertarians, legal scholars and lawyers who were united in condemning
the Bush administration's policies differ on what to do with the
prisoners at Guantanamo.
All agree that a crucial first step is to thoroughly review each
detainee's case to see how many could be put on trial in U.S. courts and
how many could be released to their home countries.
People close to Obama's transition team say officials have been busy
filling key administration posts and have not decided how to deal with
the aftermath of Guantanamo. Obama has said repeatedly that he plans to
close the prison.
But some experts on detention policy, including close Obama allies, are
convinced that problems posed by many of the detainees are insoluble:
They may be too dangerous to release but will never be able to stand
trial in U.S. courts because of tainted evidence or allegations of
mistreatment.
For those prisoners, closing Guantanamo could require congressional
approval of a law allowing long-term detention.
"There are 20 to 30 people in Guantanamo that present serious, serious
problems," said Donald J. Guter, a retired rear admiral who formerly
served as the Navy's top uniformed lawyer and was an advisor to the
Obama campaign. "If you can't take them to a court and get legitimate
convictions, what do you do with them? Do you hold them or do you
release them?"
Guter, dean of Duquesne University School of Law in Pittsburgh, thinks a
limited system of indefinite detention is needed, but acknowledges it
will cause controversy.
Lawyers for the American Civil Liberties Union think any indefinite
detention scheme would fly in the face of the Constitution. "This is a
fundamental principle of the American system of justice, that the
government cannot detain you indefinitely without proving to a judge
that you committed a crime or are going to commit a crime," said Jameel
Jaffer, director of the ACLU's national security project.
In a case highlighting the problem, the Supreme Court this week will
consider whether to hear the case of Ali Saleh Kahlah Marri, the only
person arrested in this country and still being held in a military brig
as an "enemy combatant."
Marri, a native of Qatar, is accused of training with Al Qaeda forces in
Afghanistan and volunteering for a "martyr mission." He arrived in the
U.S. on Sept. 10, 2001, and was later arrested in Peoria, Ill.
ACLU lawyers are urging justices to rule that it is illegal "to seize
and detain individuals within the United States" without charging them
with a crime. But not all civil libertarians oppose the notion of
holding prisoners indefinitely, if they are enemy combatants.
Georgetown University law professor David Cole, a critic of the White
House, said the Supreme Court had upheld the military's right to hold
captives even while striking down the Bush administration's detention
system.
"There is a lawful basis for detaining individuals captured in a
military conflict for the duration of that conflict," he said. "But you
do have to give them a fair hearing and treat them humanely.
"Had the Bush administration abided by certain basic law-of-war
principles at Guantanamo, it wouldn't be the international embarrassment
it is today," Cole said.
To avoid the question of indefinite detention, the new administration
may seek to place the detainees in one of two categories: those who can
be tried and those who can be released to their home countries.
But not all can be returned to home countries, even if they are no
longer considered a potential threat. The process of sending them home
is slow, and some fear they would be tortured or killed upon their
return. Because of that, the U.S. could be forced to take in a number of
the men it has imprisoned at Guantanamo, some civil libertarians said.
The next steps are likely to depend on how many prisoners are among
those the administration decides cannot be tried or sent home, said
Vijay Padmanabhan, a visiting assistant professor at Yeshiva
University's Cardozo School of Law in New York who until recently
handled detainee issues at the State Department.
The pressure for new legislation could be increased if officials find a
larger number of prisoners who can neither stand trial nor go home.
Possible legislation includes indefinite detention, a new national
security court and blocking detainees from seeking asylum.
The option of releasing prisoners to their home countries could pose
difficulties for the Obama administration. Padmanabhan noted that when a
former Guantanamo detainee set off a bomb in Iraq this year, it received
relatively little attention.
"But if the same thing happened with the Obama administration, it would
not be a small news story," Padmanabhan said, adding opponents would
accuse the new president of releasing dangerous terrorists. "In that
sense, the politics are harder for Obama than they were for Bush."
The difficulty of holding trials is highlighted by the case of
self-proclaimed Sept. 11 plotter Khalid Shaikh Mohammed, who was
subjected to the simulated drowning technique known as waterboarding
while held by U.S. officials. The ACLU argues that if all of the
evidence against a prisoner is tainted by torture, the detainee should
be let go.
Nonetheless, Jaffer of the ACLU thinks Mohammed can still be tried
because of an earlier indictment in the 1995 plot in the Philippines to
blow up airliners headed for the U.S. The evidence used to indict him
could probably be used to try him, Jaffer said.
But Guter, the former Obama campaign advisor, is skeptical that a
Mohammed prosecution is possible and thinks allegations of torture would
entangle any trial.
"Most of these problems we made ourselves. We could have had enough to
convict," he said. "We didn't trust our own institutions that had served
us all these years. We didn't trust in our federal courts, we didn't
trust in our Constitution."
One Obama advisor, who spoke on condition of anonymity when discussing
undecided issues, acknowledged the difficulty of the task ahead.
"There will be complicated choices to be made about individual
detainees," the advisor said. "We all know what the options are. There
is nothing new under the sun. They are all going to be looked at."
And it is clear that solutions will take time.
"Guantanamo will be closed, but these people will be transferred
somewhere, and some of them will need to be held for some time," said
Deborah Pearlstein, a national security law scholar at Princeton
University. "It doesn't make sense to say this will be resolved on Jan. 20."
Barnes and Savage are writers in our Washington bureau.
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