Some of the less threatening detainees can be and have been approved for released to other countries, though that requires more than just putting them on an airplane – the United States, after all, does not want released suspects either to (a) undertake anti-American activities upon their release or (b) be tortured by foreign governments upon their being shipped overseas.
And as complex as those cases can be, they pale in comparison to questions about what to do with the most dangerous detainees. Consider the case of self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed. Faced with a self-imposed deadline for closing Guantanamo Bay, the president is now reportedly set to announce that he will revive military commission trials for suspects like Mohammed – despite criticizing such trials as a candidate and suspending them upon taking office.
Why? Because there are really only two choices – military or federal criminal trials – for a president seeking to end the de facto policy of indefinite detention without trial that existed for many detainees under the Bush administration. And federal trials are an exceedingly undesirable option.
As former Air Force judge advocate Scott L. Silliman noted Thursday, "because the detainees would be entitled to full due process rights [in federal trials], their lengthy pretrial detention at Guantanamo Bay and the specific coercive conditions of that detention could pose significant legal challenges for the prosecution."
In other words, because Khalid Sheikh Mohammed and other detainees were subject to "enhanced interrogation techniques" such as waterboarding, much of the evidence against them could potentially be thrown out in federal court.
Military commission trials come with their own problems, however. Under the Bush administration, such trials were criticized – when they took place – for being unfair and politicized. The Obama administration has sought to retool the trials, but it's a complex process that could involve asking lawmakers to expand detainees' legal rights. (Detainees could be given the right to chose their council and hearsay evidence could be kept out of the trials, for example.)
But time is running out on overhauling the trials and them putting them into practice or coming up with another plan. And if the president is going to keep his promise to close Guantanamo, the detainees will have to go somewhere. One possible solution (which is not making liberals happy): Moving the detainees to America and holding them indefinitely and without trial.
As the Wall Street Journal reported Thursday, Sen. Lindsey Graham, following a meeting with White House Counsel Greg Craig, said that the administration is considering seeking the authority for indefinite detention on U.S. soil. Along with Sen. John McCain, Graham penned an op-ed earlier this month suggesting that "preventive detention" has its place.
"Under the law of war, the idea that an enemy combatant has to be tried or released is a false choice," they wrote. "Rather, it is well-established that combatants can be held off the battlefield as long as they present a military threat."
Members of both parties have expressed reservations about the administration's plans, and House leaders this week removed a provision requested by the president allocating $50 million for the closure of Guantanamo from an emergency military spending bill. The New York Times reports that Senate leaders plan to include the money in their version of the bill, but with a catch that means even more headaches for the administration: "Tight restrictions that for now would ban the transfer of prisoners to the United States."
Democrats have good reason for wanting to keep the detainees out of the country – bringing terror suspects to American soil, after all, is not exactly good politics. Republicans have been getting traction with criticism of Democrats for considering holding or prosecuting terror suspects in the United States; House Minority Leader John Boehner said last week that "our constituents don't want these terrorists in their neighborhoods." And House Republicans introduced legislation known as the "Keep Terrorists Out Of America Act" that would require that governors or legislatures approve the transfer of detainees into their state.
Republican Senate leader Mitch McConnell has also adopted the issue, saying Americans "don't want the terrorists at Guantanamo back on the battlefield or in their backyards." Of course, terrorists that have been held in the U.S., such as Ramzi Yousef and Timothy McVeigh, were not in anyone's backyards – they were in highly secure prison facilities from which they could and did not escape. But that doesn't change the fact that Republicans feel they can score political points on the issue – and that Democrats don't have any easy responses.
Last month, Defense Secretary Robert Gates said there are presently 50 to 100 detainees that the administration simply doesn't know what to do with, stating that "we cannot release and cannot trust [their prosecution] either in [civilian] courts or military commissions."
The administration is thus caught in a bind: The military believes these detainees cannot be released or safely prosecuted in civilian or military courts, at least as they're presently constituted. They can't be kept at Guantanamo past next January, if the president intends to close the facility. The only available answer seems to be holding these detainees indefinitely on U.S. soil – a solution that would anger both the left and the right. And the Senate bill mandating that the detainees not be transferred to American soil would invalidate even that undesirable option.
What do you think is the best way forward? Let us know in comments below. And vote on whether you think the administration will actually be able to close the prison within a year as promised.