Posted on Fri, Jan. 16, 2009
last updated: January 17, 2009 01:21:20 PM
WASHINGTON — It will take a quick pen stroke for President-elect Barack Obama to order the closing of the Guantanamo Bay prison. Implementing the directive, however, could prove lengthy, complicated and politically divisive.
The president-elect's aides are still formulating their plan for shutting the lockup, which has come to symbolize indefinite detention without charges. Yet there appears to be agreement among many experts, including some Obama aides and outside advisers, on key points, such as turning over terror suspects to federal courts and ending the use of military commissions.
"I do have some predispositions on this subject which I think are similar to the President-elect's. I think it is preferable that we proceed in . . . civilian courts," said Jeh Johnson, Obama's choice as the Pentagon's top lawyer, at his Senate confirmation hearing on Thursday.
Others, such as Sen. Lindsey Graham, R-S.C., a reserve military lawyer, wants to keep the detainees within the military justice system.
Obama is expected to sign the executive order for closing the prison at the U.S. naval base in Cuba during his first week in office, perhaps within hours of being sworn in.
The process of shuttering the facility, many of whose inmates have been innocents or low-ranking fighters of little or no intelligence value, seems straightforward enough.
It likely would begin with a freeze on the military commissions, the panels of uniformed officers created to try terror suspects that legal experts say lack due process. Among the numerous flaws cited are rules allowing the government to use evidence obtained through coercive interrogations.
Next would be a thorough review of the files of the estimated 250 detainees, the release of those where there is no case, and the relocation to a U.S. prison and the prosecution of accused al Qaida operatives and other suspected terrorists.
"The time to close Guantanamo is long overdue and it could be done in three months," said a Jan. 15 report by the Center for Constitutional Law, a legal organization that represents detainees.
Some U.S. officials and Obama aides said, however, that it's not that simple. They face hard legal, political, diplomatic and practical considerations in dealing not only with current inmates, but also with future detainees.
"We need to build a system that has credibility and survives legal scrutiny for the future as well as the people who are currently there," Johnson testified.
Some 50 detainees have been determined to be releasable, but have been forced to stay in Guantanamo because of fears they could be tortured or killed on their return home or because their governments won't take them back.
These detainees include 17 Uighurs, Muslims from China whom a U.S. judge ordered freed within the United States in October. The government is appealing the decision.
The State Department has been trying for years to convince other countries to resettle these detainees. Albania accepted five Uighurs in 2006.
Kenneth Roth, the executive director of Human Rights Watch, said that resettling these detainees shouldn't be difficult, contending that given the international goodwill for Obama, "a lot of allied leaders will have a hard time saying no."
More problematic, said a senior U.S. official, is repatriating about 100 detainees whom the U.S. has decided not to prosecute but thinks must be detained or strictly supervised by their governments because they're potential threats.
"It wouldn't surprise me if the Obama administration just sent them back and said they are small fish," predicted the senior U.S. official, who requested anonymity because he wasn't authorized to speak publicly.
Obama could face political problems, however, if any of these detainees commits what the U.S. considers a terrorist act. The Pentagon reported on Tuesday that 61 former Guantanamo inmates appear to have done just that since their releases.
The thorniest problem for Obama is dealing with about 100 others. They're considered dangerous Islamists and include accused 9/11 mastermind Khalid Sheikh Mohammed and four alleged al Qaida accomplices.
No state appears willing to take them, and Obama will have to decide how to proceed against them.
He could "move Guantanamo on shore and continue detaining these people without charges," said Roth, who called such an option "a disaster," a view Obama and his aides are thought to share.
Obama also could continue holding military commissions, create new tribunals that meet U.S. and international standards or revert to the federal court system, the option he appears to favor.
Many experts said that there's no reason to treat al Qaida suspects differently from accused terrorists who've been successfully prosecuted in scores of federal trials since the early 1990s.
Others argue that because al Qaida is at war with the U.S., its operatives should be prosecuted in the military justice system laid out in the 1949 Geneva Conventions, the international treaties codifying the laws of law scorned by the Bush administration.
"These are warriors, not common criminals," Graham told McClatchy. "We can create a system to keep them off the battlefield. But that system has to have transparency, due process, checks and balances."
Graham, a co-sponsor of the Military Commissions Act of 2006, said that he supports prosecutions before courts martial-type tribunals whose judgments would be immediately reviewed by civilian federal judges.
Another question is whether some of the most dangerous detainees can be tried at all.
Evidence against many defendants was obtained by harsh interrogation methods that some U.S. officials denounce as torture, making it inadmissible in federal or military courts.
Those detainees include Mohammed, who was subjected by CIA interrogators to simulated drowning, known as waterboarding, while he was held in a secret prison.
Simply locating vital evidence also could prove extremely difficult.
"The chaotic state of the evidence . . . and the absence of any systematic, reliable method of preserving and cataloguing evidence . . . make it impossible for anyone involved (the prosecutors) or caught up (the detainees) in commissions to harbor even the remotest hope that justice is an achievable goal," Darrel Vadeveld, a former military prosecutor, said in a declaration filed in a federal court on Tuesday in support of the release of a detainee.
If legitimate cases cannot be put together, Roth said, "You . . . release the person because there are lots of dangerous people in the world. The danger to the United States is more Guantanamo's existence than the handful of people who are being held there. It is helping create the next generation of terrorists."
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