Barack Obama’s promise on Guantanamo Bay prison camp

(Bloomberg) -- Barack Obama’s promise to close the Guantanamo Bay prison camp for suspected terrorists will force the new president to decide what to do with inmates who can’t be tried for war crimes yet are deemed too dangerous to be released.

About 250 detainees remain at the prison camp opened on a U.S. Navy base in Cuba after the Sept. 11 attacks. More than 520 others have been repatriated or sent to another country. Obama said Nov. 16 on CBS he will close the prison as part of an effort, including a ban on torture during interrogations, “to regain America’s moral stature in the world.”

Logistically, Obama may be able to “close Guantanamo pretty quickly” once he finds facilities on the mainland to house the prisoners, said Matthew Waxman, a former Defense Department official who teaches law at Columbia University. “The bigger issue is on what legal basis are you going to hold them?”

More than 100 inmates can’t be put on trial because of a lack of evidence and the Bush administration considers them too dangerous to release. Legal experts suggest several options, such as keeping them under the Bush administration designation of “unlawful enemy combatant,” labeling them prisoners of war or asking Congress to create a new type of preventive or administrative detention.

Obama has called for trying detainees in civilian or regular military courts instead of the military war-crimes tribunal created in 2006. Khalid Sheikh Mohammed, the self-proclaimed mastermind of al-Qaeda’s Sept. 11 attacks, and four co-defendants are scheduled to appear before a tribunal next week, possibly their last hearing if Obama quickly abolishes or replaces the war-crimes courts.

Defense Secretary

Defense Secretary Robert Gates, who will remain in Obama’s administration, said at a news conference yesterday that closing Guantanamo should be a “high priority” and that new legislation will be needed to keep released detainees from seeking asylum in the U.S. In May, Gates said the U.S. was “stuck” with Guantanamo because some inmates couldn’t be charged or released.

Adjusting the legal status of the Guantanamo detainees means “you are not just going to close the base and give everyone an airline ticket,” said Senator Christopher Dodd, a Connecticut Democrat who has supported expanding due-process rights of Guantanamo inmates.

Closing Guantanamo won’t “happen as quickly as people would like. It’s such a Gordian knot,” said Democratic Representative Adam Schiff of California, a former prosecutor who has pushed for changes in detainee policy.

Obama’s first step should be to announce a plan to close Guantanamo, then review all detainee files to determine which ones can be prosecuted, said Jennifer Daskal, counterterrorism counsel for Human Rights Watch.

Coerced Evidence

That will depend on whether the evidence meets the higher standards of proof required in those courts, including a ban on evidence obtained by coercion, experts say.

Such legal determinations may complicate the prosecution of such “high value” detainees as Mohammed, who has alleged during courtroom appearances that he was tortured in CIA custody.

The CIA said he was one of three inmates subjected to waterboarding, an interrogation technique that simulates drowning. If his statements on the Sept. 11 attacks are barred from use in court, Mohammed still could be taken to trial on 1996 criminal charges of conspiring to blow up U.S. airliners en route to the Far East.

In addition to the Sept. 11 defendants, 12 other people await trials before the military tribunals. The Pentagon is preparing to bring war-crimes charges against as many as 80 detainees altogether.

The new administration then should “move quickly to repatriate or resettle others,” Daskal said.

Resettlement

Resettlement won’t be easy. The Pentagon has determined that at least 60 Guantanamo detainees are releasable if the U.S. can persuade other countries to accept them.

In the last seven months, almost 20 have been released. The latest is Salim Hamdan, a former bodyguard and driver for al- Qaeda leader Osama bin Laden. Hamdan, convicted of providing material support for terrorism, was sent from Guantanamo to Yemen in November to serve the final month of his 5 1/2-year sentence.

More than 100 inmates are classified as not releasable because they can’t be put on trial and they also pose a threat to national security.

“There are some real concerns” these detainees “will join the fight against us” or will be tortured if returned to their homeland, Schiff said.

“Clearly some are more of a threat than others” and the Obama administration may have a different view on whether releasing a particular detainee would endanger U.S. security, said Anthony Clark Arend, a government and foreign service professor at Georgetown University.

Enemy Combatants

The new administration may decide to continue to hold this group as enemy combatants subject to periodic administrative review, though Obama criticized the procedure in 2006.

Federal judges in Washington are considering about 200 Guantanamo inmates’ challenges to their detention, and the Supreme Court has signaled there may be a limit on indefinite detention. One judge last month ordered the release of five inmates on grounds the government didn’t prove they were enemy combatants.

Obama could also ask Congress to create a new legal status called preventive or administrative detention. Waxman said that would be “politically controversial” and trigger a debate about “the dangers to our legal system and legal principles that flow from institutionalizing a system of detention without trial.”

Alternatively, the Obama administration could declare these detainees to be prisoners of war, which would remove them from the jurisdiction of federal courts.

Geneva Conventions

Under the Geneva Conventions, prisoners of war must be released once hostilities end. President George W. Bush declared that al-Qaeda terrorists weren’t traditional POWs -- soldiers who could be relied upon not to attack the U.S. once their country ceases the hostilities of war.

“The real challenge when you are dealing with non-state actors and terrorists in a so-called war on terror” is that they “want to continue to challenge you,” Arend said.

For inmates awaiting trials before the military tribunals, a fresh review of their cases by new political leadership at the Pentagon may enable some to be tried in federal courts or under military court-martial, said Schiff, a former prosecutor.

The Obama administration “may well face extremely difficult, shattering choices” of dropping some cases because the evidence doesn’t meet higher standards of proof, said Eugene Fidell, who teaches military law at Yale Law School in New Haven, Connecticut, and is president of the National Institute of Military Justice.

The new administration “may have to allow one or two people to escape justice in order to accomplish a larger goal” of restoring confidence in U.S. rule of law, Fidell said.

Dodd acknowledged the difficulties the new administration faces in closing the prison camp. Still, he said, “the most important point is closing the place” because “that message is the one that is going to resonate.”