Guantanamo closure not an easy prospect
A wave of change appears headed toward the U.S. detention center at Guantanamo Bay, Cuba, with all three major presidential candidates vowing to abolish the military prison.
And somewhat surprisingly, closing the camp and moving the prisoners to the United States may be the easy part, said U.S. officials, former administration aides and legal experts.
But nobody has yet found a way through the legal thicket in the way. Especially vexing are scores of foreign detainees: Officials lack evidence to prosecute, but warn against setting them free.
These hurdles make some wonder about a new administration’s capacity to turn the page on the prison.
“When it comes to closing Guantanamo, talk is cheap,” said Matthew C. Waxman, a former Defense and State department official, now a Columbia University law professor.
“The question is: Who is willing and able to lead the difficult policy and political decisions necessary to get it done?”
From the outset, architects of the war on terrorism wanted a system that could imprison accused enemies in perpetuity, safely off American soil and out of U.S. courts.
Over the last six years, hundreds of men have been impounded there, and nearly 300 remain. Internationally, Guantanamo is seen by critics as emblematic of the administration’s overreaching.
The closure pledged by the three presidential candidates -- Democratic Sens. Hillary Rodham Clinton of New York and Barack Obama of Illinois, and Republican Sen. John McCain of Arizona -- would represent a clean break with Bush administration detention policies.
Officially, Pentagon officials say there are no plans in hand to move suspected terrorists to the United States if the new president orders it. No official orders have been given to Southern Command, which oversees the prison, to prepare for its shutdown. Such orders would trigger a formal planning process.
But unofficially, midlevel officials watching the campaign pronouncements have begun working on plans -- including examining other sites and estimating the work that would be involved in moving detainees -- in case the next president orders a shutdown.
The next president could close Guantanamo and move the prisoners fairly quickly, said Charles D. Stimson, a former deputy assistant secretary of Defense for detainee affairs, now a scholar at the conservative Heritage Foundation think tank.
“If they want to do it in a prudent manner they will have to go through a logical national-security-based analysis that can be completed in a matter of weeks,” Stimson said. “The president gets sworn in January 2009; you could have them, easily, in a facility in the spring.”
A wing of one of the military’s larger prisons -- possibly at Ft. Leavenworth, Kan., or the Charleston Naval Base in South Carolina -- could work.
That site first would have to be cleared of other prisoners. Mixing prisoners could run afoul of international treaties and risk giving alleged terrorists a chance to befriend and radicalize the others, Stimson said.
To guard them, military officials could train the stateside staff or transfer the existing guard force from Guantanamo, Stimson said.
But assuming that the next president could overcome any not-in-my-backyard resistance from host-state lawmakers or residents, the process would probably be relatively uncomplicated.
Then the hard part
The larger hurdles would come later.
“I don’t think anyone in the military would be sorry if we were out of the Guantanamo business,” said a senior Pentagon official. “But that is not the way it is.”
The official, like some others interviewed, spoke on condition of anonymity when discussing plans for the prison.
The Pentagon has plans to prosecute 80 of the detainees currently at Guantanamo through the administration’s special military commission system. Sixty more detainees await release to their home countries, a process that can be painstakingly slow.
Guantanamo also holds 135 whom the Pentagon has no plans to prosecute but considers too dangerous to release. The Pentagon lacks evidence to lodge war-crimes charges, said a midlevel U.S. government official, but annual reviews have found these prisoners are threats who must continue to be held.
There is little likelihood, the official said, that the review boards will find that they are no longer a threat.
Under current law regarding Guantanamo prisoners, those 135 have a limited right to ask a judge to examine the review board’s findings but no broad rights to challenge their detention in federal court.
Limits on rights are specific to Guantanamo, however, legal experts said. If they are moved to U.S. territory, they will be entitled to broader rights to challenge their detention, the experts said.
Because there is little evidence against them that could be used in a U.S. court, government officials fear that a federal judge could order them freed. “Then you would have 100-plus future sleeper-cell members unleashed in Kansas,” for instance, said the midlevel official, who also spoke on condition of anonymity. “That is what the government is trying to prevent.”
U.S. detainee law allows the use of evidence obtained through coercion but not torture if approved by a judge. It is not clear whether evidence against some of the 135 has been discarded as inadmissible.
Defense Secretary Robert M. Gates, who favors closing the prison, has said that moving the detainees would require new legislation that allowed them to be “processed administratively.” What is needed, the midlevel official said, is a law allowing indefinite detention of “anyone who is a former enemy combatant.”
Government officials do not think Congress would pass a law allowing detainees to be held without trial. Such a law would probably be fiercely opposed by legal experts.
Moreover, the potential need for such a tool raises other questions: Would a Democratic president, elected in part as a backlash against the post-Sept. 11 policies of the Bush administration, push for a law allowing indefinite detention?
None of the candidates have spoken in detail about how they would handle the detainees in legal limbo.
McCain has called Guantanamo a strategic liability but also has said that “dangerous terrorists” must be detained indefinitely. Still, a McCain aide said Pentagon officials should seek ways around obstacles to closing the prison.
“They can be down in the weeds burrowed in the bureaucracy, coming up with all these reasons why it can’t happen,” said the aide, who was not authorized to speak publicly on the issue. “But the fact is, their commander in chief and secretary have said they would like to close Guantanamo.”
An Obama administration would work to cut the Guantanamo population by sending detainees to their home countries or prosecuting them, said an advisor, who also was not authorized to speak publicly on the issue.
“I hope we would not take the historically unprecedented step of creating a detention-without-trial regime until we exhausted every other possibility,” the advisor said.
Neither Clinton’s campaign nor her Senate office responded to a request for comment. Clinton has said she supports a right for prisoners to seek court reviews.
The Supreme Court could upend current calculations about Guantanamo when it rules this year in a pending detainee-rights case.
Waxman, the law professor and former federal official, predicts that the Supreme Court will give detainees more rights to challenge their captivity, even if they are kept at Guantanamo.
“The gap in legal rights between Guantanamo and the territorial United States is closing,” Waxman said. “And the Supreme Court is about to close it further.”
However, a court ruling won’t solve all the problems, and could create new ones. Legal experts believe it would force Congress and the administration to negotiate new rights or a law to move detainees to a U.S. site. But that work too could fall to the next president.
“The Supreme Court is likely to hold that some constitutional rights apply at Guantanamo and that existing processes are not sufficient,” Waxman said. “So there will likely be a need to revise those processes anyway -- with legislation.”