Closing it may be the easy part

Barnes and Savage are writers in our Washington bureau.

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.”