President Elect Barack Obama wants to close the U.S. detention camp at Guantanamo Bay, but it’s proving to have some side issues that are making any decision…torturous. Reuters reports:
U.S. President-elect Barack Obama has made no decision on how try detainees at Guantanamo Bay but remains committed to closing the prison, a senior foreign policy adviser said on Monday as human rights groups urged swift action.
Five human rights groups urged European governments to accept Guantanamo prisoners who cannot be sent home for fear of persecution, while a sixth group called on Obama to sign an order shutting the prison camp on the day he takes office.
The global efforts are aimed at pressuring Obama to make good on his campaign pledge to close the widely reviled detention camp at the U.S. naval base in Cuba and halt the special tribunals that try foreign terrorism suspects outside the regular courts.
“President-elect Obama, with a stroke of your presidential pen, on Day One of your administration, you can ensure that our government will be faithful to the Constitution and to the principles upon which America was founded,” the American Civil Liberties Union said in a full-page ad in The New York Times.
The White House has virtually challenged Obama to make good on his promise to shut down the facility, saying “it’s not so easy” — and, indeed, the issue is proving to be a legal minefield, TIME notes:
Obama has vowed to close Guantánamo and reject the Military Commissions Act, the 2006 law underpinning the ongoing Guantánamo tribunals. But major hurdles stand in the way of doing so, even for a new President with a clear mandate.
First, what do you do with the roughly 255 people currently imprisoned at Guantánamo — a group of whom only 23 have been charged? If Obama wanted to move as swiftly as possible to close Guantánamo, the strongest step he could take as President would be to simply shutter the camp by Executive Order and transfer all of the detainees to prison sites inside the U.S. At that point, in theory, the detainees would face four possible fates: being charged with offenses that could be tried in federal courts; court-marshaled according to the Uniform Code of Military Justice; turned over to the governments of their native countries; or simply released. (See pictures from inside Camp X-Ray at Guantánamo here.)
Many civil rights activists say existing military and civilian criminal courts can handle the Guantánamo cases and decide on the disposition of each of those 255 individuals, despite the Bush Administration’s arguments otherwise. But the legal limbo many Guantánamo detainees have endured for years still poses significant problems. That is because the primary purpose of detaining these people was not to stage trials but rather to gain usable intelligence through interrogation. Forming proper criminal cases at this point would be difficult.
But, as CQ Politics underscores, there are also political bumps in the road ahead as well as legal ones:
California Democrat Adam B. Schiff , a former federal prosecutor who serves on the House Judiciary Committee, said the congressional response “probably depends on whether the new president heads in the direction of trying to move detainees wholesale into the criminal court system, which I think would meet a lot of resistance from the right or wants to establish a wholly new secret court to adjudicate detentions which will have some resistance from the left.”
The new court would adjudicate some cases in which the government doesn’t have the evidence required to convict detainees of crimes in civilian courts.
But any decision to bring terrorism suspects to the United States to stand trial will spark a firestorm of political criticism from Republicans. Lawmakers in both parties are unlikely to favor seeing detainees imprisoned in their districts.
In addition, any legislative proposal to create a new court, which legal experts have been debating for years, is likely to face widespread opposition across the political spectrum. Conservatives favor retaining the existing military commissions while civil libertarians worry about creating another problematic new legal regime.
“The only reason why you would create a new court is to lower the standards, eliminate key due process guarantees and make it easier to convict,” said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch.
One potential strategy is to try some detainees in U.S. civilian courts, and subject others to courts-martial under U.S. military law, which might require only some relatively minor legislative tweaking. That solution would allow the government to try detainees with different procedural and evidentiary requirements than criminal courts. Using the pre-existing Uniform Code of Military Justice as the framework would likely avoid the sort of lengthy legal challenges to the process that detainee lawyers have mounted against military commissions and would likely launch against a new court.
Writes Dale McFeatters of the Scripps Howard News Service:
There is a legitimate concern about disclosing in open court the identify of CIA operatives, foreign agents working on our behalf, the cooperation of foreign governments and intelligence sources and methods.
In trying to do this, the Bush administration went overboard and stripped the prisoners of so many rights they were basically facing kangaroo courts. Surely the Justice department, cleaned out of the sort of political hacks who produced the torture memos, and the House and Senate Judiciary and Intelligence committees can devise protections that will balance the competing interests.
The most difficult part of closing Guantanamo will be bringing them to the mainland. Proponents of keeping Guantanamo open treat the move as if we’re doing the detainees some kind of favor. After they get a look at a mainland super-max prison they may begin agitating to go back to Guantanamo.
This is just one of several issues where the new President may see himself caught between demands from the left and the right.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.