Guantanamo's closure would not settle fate of detainees

A Guantanamo detainee peered from inside his cell at the US Naval Base at Guantanamo Bay, Cuba. A Guantanamo detainee peered from inside his cell at the US Naval Base at Guantanamo Bay, Cuba. (Brennan Linsley/Associated Press)
By Julian E. Barnes and David G. Savage
Los Angeles Times / November 25, 2008
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WASHINGTON - President-elect Barack Obama's vow to close the US detention center at Guantanamo Bay was cheered by human-rights organizations and civil libertarians, but it could force the new administration to consider a step those groups would abhor.

Some Obama advisers predict that his administration might have to decide whether to ask Congress to pass legislation allowing a number of detainees to be held indefinitely, without trial. But civil libertarians believe that even a limited version of such a proposal would be as much at odds with US judicial custom as the offshore prison itself.

The debate suggests that the decision to close Guantanamo might be the easy part for Obama. Much harder will be sorting out the legal complexities of holding, prosecuting, transferring, or releasing the roughly 250 prisoners at the prison.

Obama never has embraced an indefinite detention law, and his supporters believe he would take steps to avoid that outcome. However, divisions have emerged among Obama allies on how to proceed. The civil libertarians, legal scholars and lawyers who were united in condemning the Bush administration's policies differ on what to do with the prisoners at Guantanamo Bay, Cuba.

All agree that a crucial first step is to review each detainee's case thoroughly to see how many could be put on trial in US courts and how many could be released to their home countries.

"There are 20 to 30 people in Guantanamo that present serious, serious problems," said Donald J. Guter, a retired rear admiral who formerly served as the Navy's top uniformed lawyer and was an adviser to the Obama campaign. "If you can't take them to a court and get legitimate convictions, what do you do with them? Do you hold them, or do you release them?"

Guter, now dean of Duquesne University School of Law in Pittsburgh, says he believes that a limited system of indefinite detention is needed, but he acknowledges that it would ignite controversy. Lawyers for the American Civil Liberties Union say that any indefinite detention scheme would fly in the face of the Constitution.

The Supreme Court this week will consider whether to hear to the case of Ali Saleh Kahlah al-Marri, the only person arrested within this country and still being held in a military brig as an enemy combatant.

Marri, a native of Qatar, is accused of training with Al Qaeda forces in Afghanistan and volunteering for a "martyr mission." He arrived in the United States on Sept. 10, 2001, and was later arrested in Peoria, Ill.

ACLU lawyers are urging justices to rule that it is illegal "to seize and detain individuals within the United States" without charging them with a crime.

To avoid the question of indefinite detention, the new administration might seek to place the detainees in one of two categories: those who can be tried and those who can be released to their home countries.

But not all can be returned to home countries, even if they are no longer considered a possible danger. The process of sending them home is slow, and some fear they would be tortured or killed upon their return.

The next steps are likely to depend on how many prisoners are among those the administration decides cannot be either tried or sent home, said Vijay Padmanabhan, a visiting assistant professor at the Yeshiva University's Cardozo School of Law in New York who had handled detainee issues at the State Department.

The pressure for new legislation could be increased if officials find a larger number of prisoners who can neither stand trial nor go home. Possible legislation ranges from indefinite detention or a new national security court to a simpler law blocking detainees from seeking asylum.

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