WASHINGTON—President Bush reiterated Wednesday that he'd like to close the prison at Guantanamo Bay, Cuba, but his administration is facing an awkward political and legal quandary over what to do with the estimated 460 detainees being held there.
Anger over the administration's detention policies, coupled with allegations of prisoner abuse, the force-feeding of hunger strikers and riots at the facility, have caused even some close allies to demand its closure and hobbled the administration's ability to promote democracy and human rights overseas.
Saturday's suicides of three inmates further sullied the United States' image and provoked new calls for shuttering the prison, a demand that Bush will hear again next week from his European counterparts at a summit in Vienna, Austria.
Some legal experts say the administration created its detainee dilemma by deciding after the Sept. 11, 2001, terrorist attacks that when it came to suspected al-Qaida and Taliban militants, America no longer had to abide by its own constitutional guarantees of a public trial or by international treaties on human rights and the laws of war.
"They were too clever by half," said Ret. Adm. John Hutson, a former Navy judge advocate general who's the dean of the Franklin Pierce Law Center in Concord, N.H. "They thought they could take people and put them in Guantanamo, which the U.S. does not own, and they would be beyond the reach of the law and they could do whatever they wanted with them and no one would care."
More than four years after the prison opened, only 10 suspected Islamic militants face charges before military tribunals, whose legality may be determined within days by the U.S. Supreme Court. But even if they're found to be legal, international legal and human rights experts already have denounced the tribunals as illegitimate.
Approximately 330 other so-called "enemy combatants" linger at the U.S. naval base in Cuba, not charged with any crimes but facing indefinite detention without trial, which the U.N. Human Rights Commission considers a violation of international law.
The Pentagon has found the remaining roughly 120 detainees eligible for transfer or release under a policy aimed at reducing the prison's population to only the most dangerous suspected terrorists.
But these detainees' futures are tied up in complex negotiations by the State Department, the Pentagon and their own governments that began at least two years ago.
U.S. officials are concerned that some detainees would take up arms again if they were released, as have about 30 of some 290 prisoners previously freed.
Before they can be turned over, agreements must be reached on safeguards—such as surveillance, travel bans or incarceration—to be taken by detainees' governments to reduce any threat they might pose.
"We don't want to return them to a country and have them back involved in terrorist activities," said a State Department official, who spoke on condition of anonymity because of the sensitivity of the diplomacy. "We need to have a level of assurance on the security matters that is substantial."
But some countries have resisted requests to re-incarcerate prisoners because there's no clear evidence that they've broken any laws.
"We don't have many other countries in the world who are stepping up to say this is a problem for the international community. The United States should not have to shoulder this burden alone," John Bellinger, the State Department's top legal officer, complained last month.
In other cases, the United States has to find countries willing to accept foreign prisoners because of concerns that their own governments might torture them. For instance, five ethnic Uighurs from western China waited nine months after their release was approved before U.S. officials could convince Albania to accept them.
"It's a little bit of a Catch 22, but we are working through this," Bush said at a news conference on Wednesday at which he repeated his desire "to close Guantanamo."
There are other problems. Some countries aren't equipped to hold dangerous detainees. Afghanistan agreed last year to accept all 96 Afghans held at Guantanamo, but won't complete a new maximum-security cellblock until at least December.
Bush acknowledged that the prison has hurt the U.S. image abroad.
"My answer . . . is that we are a nation of laws," he said, maintaining that those held at Guantanamo were "picked up off the battlefield" and are "darn dangerous."
Gitanjali Gutierrez, an attorney with the non-profit Center for Constitutional Rights, which is representing 200 detainees, disputed Bush's contention, saying, "The majority of men in Guantanamo Bay have not committed a crime. There is no basis for detaining them."
Some U.S. lawmakers and European leaders, the U.N. Commission on Human Rights, human rights groups and legal experts all have disputed Bush's authority to maintain the prison, and the Supreme Court has ruled that detainees may challenge their detentions in U.S. courts.
U.S. public opinion is split over Guantanamo, according to a poll conducted in March by the Pew Research Center for the People and the Press.
The Supreme Court is due before the end of the month to decide the case of Salim Ahmed Hamdan, Osama bin Laden's former driver in Afghanistan and one of the 10 detainees facing trials before military tribunals.
Hamdan's lawyers said the prisoners should be freed or tried in federal or regular military courts because the tribunals, as designed by the Pentagon, disregard accepted legal standards by ignoring rules of evidence and permitting secret proceedings.
The administration has argued that the Supreme Court has no authority to hear the case because Congress passed a 2005 law that stripped the detainees of their right to challenge their detentions before U.S. courts.
Even if the administration prevails in the Hamdan case, some U.S. officials and legal experts said it could have a hard time proving its cases because much of evidence against the 10 is weak or gathered through questionable means.
"Whatever the Supreme Court decides, I believe a significant number of these men will be released either because the U.S. government will not have the ability to move forward before the tribunals or the government will realize it can't make the cases against these men," said Jeffrey D. Colman, a Chicago attorney whose firm, Jenner & Block, represents nine detainees.
On May 19, three of his clients were released to Saudi authorities with no explanation. Through family members, they've reported being treated better in Saudi custody than they were at Guantanamo, Colman said.
"They get to visit their families, they get to speak with people in their own language and the conditions are better," he said. "As its stands, they would much rather be in custody in Saudi Arabia than at Guantanamo."
(c) 2006, Knight Ridder/Tribune Information Services.
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