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Guantanamo Closure Called Obama Priority
In a report issued in May, Human Rights First noted that since the Sept. 11, 2001, attacks, there had been 107 successful prosecutions of international terrorism cases in the federal courts, compared with three convictions in military commissions at Guantanamo Bay, including one plea bargain.
"The federal criminal courts are capable of handling serious terrorist cases and capable of handling people and evidence seized overseas, without sacrificing the government's need to protect sensitive material, while protecting defendants' rights," said Deborah Colson, a senior associate at Human Rights First.
And Waxman said that "criminal prosecution in federal court is a more potent counterterrorism tool today than it was in 2001," adding that "criminal statutes have been expanded to cover more types of terrorism crimes."
But some experts say the United States still needs some form of preventive detention, albeit one that includes robust defendant rights and ongoing judicial review. "We need a preventative detention regime, very limited, that allows for those few tough cases -- a dozen, two dozen, not a lot -- of future captures," said Charles D. Stimson, a former deputy assistant secretary of defense for detainee affairs.
Stimson and others cite the possibility of compelling intelligence that will not transfer to a court setting and the risk of exposing operational secrets, including cooperation with countries that do not want to be seen assisting the United States.
Moreover, they said, the cases against some detainees already in custody have been so compromised by torture or coercive interrogations that federal prosecutors might refuse to go forward or, if they did, might open the cases to the real risk of dismissal or acquittal.
"There will be a sobering moment for enthusiasts of a 'try and release' regime when people start looking at the contents of those detainee files," said Benjamin Wittes, a Brookings Institution fellow and the author of "Law and the Long War," which advocates preventive detention backed by a national security court.
Wittes noted that of the 250 people at Guantanamo Bay, 60 or so have been cleared for release or transfer, and he added that the military at its most optimistic believes only 80 can be put on trial. Currently, 18 detainees are charged before military commissions.
He noted that among those not currently charged is Mohammed al-Qahtani, who is suspected of planning to be one of the Sept. 11 hijackers. Qahtani's case, however, has been allegedly tainted by torture. Wittes argues that Qahtani exemplifies a special category of detainees and future captures: those who are too dangerous to release, but difficult or impossible to prosecute.
J. Wells Dixon, a staff lawyer at the Center for Constitutional Rights, which represents Qahtani, disagreed. "What a national security court is designed for is to hide the use of torture and allow the consideration of evidence that is not reliable," he said.
Some Obama advisers believe the damage to U.S. interests and image because of the Bush administration's policies is too great to countenance any form of preventive detention. They acknowledge that they do not know how the issue of torture would play out in federal court, even if prosecutors ignore evidence produced by coerced confessions.
"There is always a risk of acquittal, and there is a risk some people who are released will return to the battlefield," said one Obama adviser. "There is no risk-free option."
Staff researcher Julie Tate contributed to this report.