As president, Barack Obama has found the specifics of closing Gitmo far more complicated.
He’ll use a speech Thursday morning to try to wrestle back control of the first big debate where even his own party has turned against him. At the same time across town, former Vice President Dick Cheney will offer a sharply opposing view of a facility that Cheney argues is the proper place to lock up America’s enemies.
At issue: about 240 men still at the military prison. The problem isn’t just that European and other allies have made clear they don’t want them. Or that Democrats and Republicans have both said not-in-my-backyard. There are host of legal and ethical issues at play that are making Obama’s goal of closing Gitmo in January recede ever further from reach. Here are some of them:
The toughest problem isn’t the worst-of-the-worst. It’s the not-so-bad guys.
Al-Qaida leaders like Sept. 11 mastermind Khalid Sheikh Mohammed strike fear into the hearts of many Americans – but pretty much everyone agrees those guys should stay locked up forever.
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It’s the in-between guys that are the more challenging problem – rank-and-file prisoners who
may have played some role in Al Qaeda or Taliban activity, but aren’t suspected of taking part in any major attacks.
“The big problem is not KSM. It’s Mohammed Mohammed,” said laywer David Remes, who represents clients at the prison, alluding to a metaphorical Guantanamo everyman. “The big problem is not going to be with potential defendants…We’re going to do something with them. It’s the indefinite detention guys.”
Obama has set out new rules for military commissions to try some of the cases, and some detainees, probably fewer than two dozen, are expected to be tried in federal civilian courts.
But even Obama doesn’t envision sending everyone left at Gitmo through a trial. So disposing of these lesser figures could simply mean bringing them to U.S. prisons – which members of Congress from both parties strenuously resist — or even seeing them someday released.
“Maybe 30 of 241 are going to face some kind of criminal tribunal or revised military commission or Article III court,” Duke law professor and former military lawyer Scott Silliman said. “What do you do with the rest of them where there’s no evidence of criminality—or no usable evidence?”
Not everyone thinks they’re as dangerous as the United States.
A few countries like Jordan and Egypt have agreed to take Guantanamo Bay prisoners – but haven’t agreed to treat them as the U.S. would like, by keeping them under lock-and-key, or tight surveillance. Perhaps 180 of the prisoners could someday be released to foreign countries – if they would have them, which, for now, seems unlikely.
“They’re basically saying, ‘You’ve held our citizens for six years and never charged them. It’s a little much to just ask us to take over the jailers’ keys,’” Silliman said.
That could cause a huge political headache for Obama, especially if he’s seen as sending prisoners back to countries that will merely turn them loose – to potentially return to plotting against the United States. A new Pentagon report estimates roughly 1 in 7 prisoners already released from Gitmo under President George W. Bush did just that, and all it would take would be one ex-Gitmo prisoner caught in a future attack to expose Obama to charges he threw open the jail doors.
But Silliman said the U.S. may simply have to cave on the monitoring issue to unload more risoners. “The only viable option….may be much less assurance of restraint,” he said.
Obama also had hoped some European allies would take more of the prisoners, as a way to help out his new administration, but that hasn't panned out. France, for instance, agreed to take a single one.
If they walk, do they….walk?
It’s one of the thorniest issues in figuring out how to put these terror suspects on trial – what if one of them beats the rap?
In other words, if Obama puts detainees on trial in federal court, or devises a new military commissions procedure for Gitmo that is so much like American-style justice that someone gets acquitted, is Obama prepared to let a “suspected terrorist” walk out the door?
Some lawyers tracking Gitmo proceedings always feared the Bush administration stacked the deck to all but guarantee convictions – and they’re waiting to see more details of Obama’s plans for military-run trials to see how fair his process will be.
“If you’re not willing to have an acquittal, and you set up a system that will guarantee there will not be an acquittal, it’s not a system of justice. It’s something else,” said John Hutson, a former Navy Judge Advocate General who’s now dean of Franklin Pierce Law Center in New Hampshire.
“Frankly, you ought to have the moral courage then to say, ‘We’re just going to hold them forever,’ rather than going through this charade of appearing to give them justice when we’re not.”
Politicians on both sides of the aisle are making vows never to release Guantanamo prisoners or “terrorists” into the U.S. But such a release can’t be ruled out altogether if the prisoners are brought to American soil. Obama may seek legislation to reduce the chance of such a release, lawyers said.
They can’t go home again, at least not to Yemen
The first choice for the U.S. whenever possible is to return prisoners to their home countries. But Yemen is a “huge problem,” one lawyer said.
Almost 100 of the roughly 240 prisoners left at Guantanamo hail from Yemen – the site of the USS Cole bombing in 2000. But the country’s checkered record when it comes to restraining and “rehabilitating” other Islamic militants has made U.S. officials leery about returning anywhere near 100 prisoners there.
Some militants that Yemen tried to retrain “went to Iraq and carried out suicide attacks on U.S. forces,” while other prisoners broke out of jail, said Greg Johnsen, a foreign policy scholar at Princeton. The Yemeni government is barely in control of its own territory.
One possible option for the U.S. is to send the Yemenis to Saudi Arabia. However, it’s unclear if Saudis could handle or are willing to take such a large group of Yemenis. “In the long run, it might cause the same problems,” Johnsen said.
Obama can’t un-do “torture”
Courts have held that evidence obtained under harsh interrogations – torture, to the critics – isn’t admissible in court. The Bush administration tried to get around this by sending in “clean teams” to re-interview detainees without the use of sleep deprivation, water-boarding and other methods.
But it’s far from clear that courts will consider evidence gathered by these “clean teams” to be truly clean.
That could mean there is a significant number of prisoners who judges might rule simply cannot be given a fair trial, even under the new rules being set up by Obama. What then?
In another twist, the so-called clean teams, apparently at the instruction of the Bush administration, did not give Miranda rights warnings to Guantanamo prisoners, according to lawyers tracking the situation. That fact alone could complicate efforts to bring cases to federal courtsin the United States.
“That has created a lingering problem, which I think was somewhat intentional,” said Ken Roth of Human Rights Watch.
The Justice Department has argued that a prisoner’s claims of torture in another country aren’t relevant to his later statements at Guantanamo, but one federal judge has already squarely rejected that claim. “The government is wrong,” Judge Gladys Kessler wrote earlier this month. “How could any person forget or be unaffected by the kind of torture that [the prisoner] alleges he endured, or by fear of facing such torture again?”
David S. Cloud contributed to this story.