Gitmo jail unwanted but likely to linger
U. S. hamstrung by shortage of options
By James Oliphant
Washington Bureau
WASHINGTON — For years now, the U. S.-run prison camp at Guantanamo Bay, Cuba, has for many served as an indelible image of the overreach, even the abuse, of American power. Human-rights groups have excoriated it. Scores of lawyers have fought to free its inmates. Both John McCain and Barack Obama have vowed to close the prison if elected.
But there may be sound policy reasons for keeping the facility open deep into the term of the next president.
While an apparent consensus has built that Guantanamo must go, that was the easier question to answer. The far tougher one is what to do with the detainees held there — those who should be released and those the Pentagon believes must be kept imprisoned, perhaps indefinitely.
“There’s not going to be a one-size-fits-all approach to this population,” said Matthew Waxman, a former deputy assistant secretary for detainee affairs at the Defense Department. “I’d like to see Gitmo closed and closed quickly, but I also want to see it done right.”
The Supreme Court last month gave the 265 remaining detainees at the jail the chance to have their detentions reviewed by a federal court.
Last week, judges on the U. S. District Court in Washington began the formidable task of coordinating those cases and warned the government that they want to make the determinations quickly—by the end of the year in some cases.
Then there is the looming presidential election. The current regime at the Pentagon won’t have the authority to decide the detainees’ fate, and there may be some incentive to move many of them off the base in the coming months. The presidential transition will also slow the process.
Both situations will push the Bush administration to do something sooner rather than later, but it may be hamstrung by the lack of options for disposing of the detainees.
There are few places where the detainees can be sent. And even fewer that want them.
There are three distinct groups at the Guantanamo jail, located on a U. S. Navy base. The first are the 20 who are charged with war crimes and will be tried by the military commissions. They include alleged Sept. 11 plotters such as Khalid Shaikh Mohammed, who was before a commission last week for pretrial motions. But because commission procedures drafted by the Pentagon were ruled unconstitutional by the Supreme Court, the process has been agonizingly slow. A full trial has yet to be completed.
60 may still be charged
The Pentagon says it expects to charge as many as 60 more detainees. Last year, Defense Department officials told a congressional panel that it would need three years to try all the detainees and urged Congress to allow Guantanamo to stay open because of the courtroom built there for the purpose.
The second group is the 54 detainees already cleared for release by the Pentagon. They remain in Guantanamo because their home countries won’t accept their return. As one human-rights lawyer said, “They’re tainted.” The government also wants to ensure that these detainees won’t be imprisoned or tortured after being returned.
Diplomatic efforts are under way to persuade other nations to accept some detainees, but little progress has been made. Detainee advocates say the United States could lead by example, taking in detainees such as Chinese Muslims known as Uighurs whom China won’t allow to return.
“If [the government] really wanted that to happen, they would make it happen,” said Emi MacLean, a lawyer for some of the detainees.
The remaining detainees may present the largest challenge for the next president. Some will be cleared for release, others may be charged, but there will remain a core number—no one can say how many—that the Pentagon will want to keep indefinitely as enemy combatants because of its belief that they would take up arms against America upon release.
But the government may not have enough evidence to formally charge them—or even justify their detentions to a federal judge. And some of that evidence might have been obtained illegally, through extreme interrogation tactics or other means.
One solution may be to move as many of them as possible to friendly nations that would detain them on America’s behalf. Amnesty International and Human Rights Watch are attempting to track the transfers of detainees to see if that’s happening. They point to the recent disappearance of two prisoners who were returned to Algeria. They also are nervous about a prison the U. S. is building in northern Afghanistan to replace the one at Bagram Air Force Base.
But moving the prisoners could be viewed as an end-around to the Supreme Court’s habeas corpus decision last month.
Transporting prisoners from Guantanamo to somewhere other than U. S. territory could, arguably, extinguish their legal rights but risk the wrath of federal judges already out of patience with the Pentagon.
The Supreme Court’s decision, said Bradford Berenson, a former White House lawyer who helped design the military commission process, makes it more difficult to empty the prison.
“It has made the moving of Gitmo detainees less feasible, less attractive than it once was,” Berenson said.
Regardless, there are going to be scores of detainees—those convicted by the military commissions, those facing trial, and those who are being held without charge—who will need to be imprisoned somewhere else.
Guantanamo options The options include transporting the detainees to a military prison in the U. S., either at Ft. Leavenworth, Kan., or the Navy brigs in Norfolk, Va., and Charleston, S. C.—or the “Supermax” civilian prison in Colorado that currently holds convicted terrorist Zacarias Moussaoui.
That has prompted some not-in-my-backyard rhetoric. Sens. Sam Brownback and Pat Roberts of Kansas recently declared their opposition to using Leavenworth, saying security there is insufficient and voicing concerns about escaping detainees.
“Who wants an obvious terrorist in their state?” Berenson asked.
Colorado Sens. Wayne Allard and Ken Salazar have taken no position on the use of the Supermax prison, although Allard’s office says security there isn’t a concern.
Still, considerable logistical issues will present themselves, including how to keep the detainees segregated from the rest of the prison population and employing military and civilian staff to monitor them, as well as to provide security against attack. At present, 2,000 members of the military work at the Guantanamo prison.
There could be significant legal hurdles in keeping military prisoners in civilian jails or transferring some of them to the federal justice system for trial, as Obama has said he wants to do. (McCain prefers the military commission system.)
That likely would mean the involvement of Congress to devise a comprehensive detention plan to replace Guantanamo.
And since Congress isn’t known for doing anything quickly, that may be yet another reason that those remaining detainees in Cuba won’t be going anywhere for a long, long while.
joliphant@tribune.com
Copyright © 2008, Chicago Tribune
July 19th, 2008 | Category: Guantanamo
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