Gitmo: An Early Test Of Obama's Pragmatism

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

For years now, terror law experts and commentators of varying ideological backgrounds have suggested the use of the "triple option" to move America beyond the ugly symbolism that has marked its use and abuse of the infamous prison.

The Obama plan for the eventual closing of the detention facility at the military base - what we know of it, anyway - is a practical, reasonable solution to the problem the Bush administration created for itself in the aftermath of the terror attacks upon America.

At the time, U.S. forces and their Coalition allies indiscriminately swept up from the floors and carpets of the Middle East hundreds of suspected terrorists and then deposited them together onto the island of Cuba.

Our ability now to (finally) process these men justly, rapidly and unambiguously is either going to succeed or fail depending upon the acuity of the men and women responsible for its details.

The tripartite scheme is simple at its base. Some detainees, who were unfairly or inaccurately caught up in the post-9/11 dragnet, or those who simply are no longer a viable threat to America and her allies, will be sent back to their native lands or perhaps other countries.

The Bush Administration has been doing this for years - hundreds of men already have been sent back overseas - but has been stymied in certain other cases. So the first question surrounding the new "plan" is what Team Obama plans to do differently from its predecessor in pawning these men back off on other countries. Why is the new administration going to succeed where the current one hasn't?

The second part of the triangle involves taking some of the lesser lights in the detainee population - men who may have committed low-rent, terror-related crimes against the United States and/or her allies - and simply running them through our existing criminal justice system. But we've already learned through bitter and sometimes bizarre lessons (like the zany trial of Zacarias Moussaoui) that the blend of terror defendant and old-fashioned civilian courtrooms doesn't always generate good, clean results.

The Florida trial of Jose Padilla, for example, was a sham. Does Team Obama really want to replicate it with terror suspects even less culpable than Padilla?

And if that's the case, is the new administration willing to spend extra money giving the federal courts the personnel they'll need to handle this extra chore? There are currently some 40 or so vacancies on the federal bench. Obama's Gitmo plan simply must address these vacancies if it's going to succeed.

But it's the third leg of the plan which is sure to generate the most controversy. The president-elect reportedly wants to establish a new justice system - a "third way," you might say - for prosecuting the most dangerous of Gitmo's detainees. Instead of trying to prosecute men like Khalid Sheik Mohammed and Ramzi Binalshibh within the confines of the dubious military commissions plan, the Obama administration would bring them here to the States and prosecute them in semi-secret terror-law courts, overseen by civilian judges with FISA-like terror-law backgrounds.

If done properly, with foresight and cooperation with the other branches, such a system would break the logjam over the rights of the terror detainees.

This is no small matter. We are now more than seven years removed from September 11, 2001 and still there has been no completed military trial of a serious al Qaeda leader under tribunal rules initially set up by President Bush within months of the terror attacks.

Three times over those years, the United States Supreme Court has rejected plans offered by the military, and the Republican Congress, and the White House to move along the tribunals. Nowhere in the world of terror law is "the need for change" more desperately clear than it is here.

But it will have to be smart and subtle change. Civil libertarians and some Democrats are going to push for close to the full panoply of due process rights for the detainees should they be corralled into this new system of justice. These folks are legitimately concerned that the creation of a new "Terror Court" would ultimately hinder the due process rights of "regular" citizens through the type of legal osmosis we see every day in other areas of the law. Just put the terror big shots through the regular criminal courts, say these folks, and let's stop all this nonsense about a brand new scheme.

Meanwhile, pushing for harsher rules and sanctions will be some Republicans and the same neo-cons whose quenchless desire to endorse silly detainee rules (like precluding terror defendants from seeing the evidence against them) has predictably stymied the military tribunals for going on seven years. These folks are legitimately concerned that giving terror chiefs like Khalid Sheik Mohammed access to any civilian court on the U.S. mainland will harm our national security interests. And anyone who has closely followed the Mohammed tribunal down at Gitmo knows this is not a far-fetched concern.

So there are huge challenges here. The good news, it seems to me, is that Harvard Law School Professor Laurence Tribe is involved in figuring out some sort of common ground, and that he appears predisposed to that "third way" system.

Why is this a good thing? Because liberals know and trust Tribe to ensure that the terror detainees will get reasonable due process rights. And conservatives are smart enough to figure out that if Tribe is working on a special terror-court paradigm, he hasn't (and he won't) buy into the idea of shuttling the detainees to the federal courthouse for the Southern District of New York, in what would have been the shadow of the World Trade Center.

The Obama campaign succeeded because all the president-elect's men and women convinced 52 percent of voters that he was more competent than the current administration or John McCain. His ability to close Gitmo while fairly disposing of the remaining detainees will be an early test of that theory.
By Andrew Cohen