By Peter Finn
Washington Post Staff Writer
Wednesday, November 12, 2008
The Obama administration will launch a review of the classified files of the approximately 250 detainees at Guantanamo Bay immediately after taking office, as part of an intensive effort to close the U.S. prison in Cuba, according to people who advised the campaign on detainee issues.
Announcing the closure of the controversial detention facility would be among the most potent signals the incoming administration could send of its sharp break with the Bush era, according to the advisers, who spoke on the condition of anonymity because they are not authorized to speak for the president-elect. They believe the move would create a global wave of diplomatic and popular goodwill that could accelerate the transfer of some detainees to other countries.
But the advisers, as well as outside national security and legal experts, said the new administration will face a thicket of legal, diplomatic, political and logistical challenges to closing the prison and prosecuting the most serious offenders in the United States -- an effort that could take many months or longer. Among the thorniest issues will be how to build effective cases without using evidence obtained by torture, an issue that attorneys for the detainees will almost certainly seek to exploit.
Moreover, the new administration will face hard decisions regarding not just the current Guantanamo Bay detainees but also how it will handle future captures of terrorism suspects. It is unclear whether President-elect Barack Obama would consider holding some suspects without charge on national security grounds. His transition team denied reports this week that it was contemplating some form of preventive detention backed by a new civilian national security court. The idea has been a staple of legal debates over the future of Guantanamo Bay for the past year, but Obama advisers believe it would meet fierce congressional resistance.
"A great deal of attention has been focused on Guantanamo, as it should be, but Guantanamo is a symptom of a much larger question: Where and how is the U.S. going to detain and interrogate terrorist suspects it continues to pick up in combating al-Qaeda?" said Matthew Waxman, a former deputy assistant secretary of defense for detainee affairs and now a law professor at Columbia University.
Although as a candidate Obama publicly expressed his desire to close the detention facility, his transition team stressed this week that the president-elect has not assembled his national security and legal team and that no decisions have been made "about where and how to try the detainees," Denis McDonough, an Obama foreign policy adviser, said in a statement issued Monday.
During the campaign, Obama, while eschewing details, appeared to favor federal prosecution of terrorism suspects. "It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in August, after the completion of the first trial at Guantanamo Bay, which resulted in a relatively mild sentence for Osama bin Laden's driver.
A campaign advisory group, which has now been disbanded, was sympathetic to a "try or release" system proposed by advocacy groups such as Human Rights First and studies by organizations such as the Center for Strategic and International Studies. Under this proposal, the new administration would shutter military commissions, review the files at Guantanamo Bay to send as many cases as possible to federal court for prosecution, and release the balance of detainees for prosecution or resettlement in their home country or other nations.
The new administration expects that European countries and Persian Gulf states that previously resisted accepting Guantanamo Bay prisoners will be more open to resettling some who are cleared for release or who cannot be sent home because of the risk of torture. Such cooperation is likely to follow a U.S. decision to settle some small group of detainees in the United States, possibly the Chinese Uighurs whom the government has said are not enemy combatants.
The incoming administration will also have to prepare military or federal prisons where it plans to hold those it intends to prosecute and must assuage state and local concerns about housing the detainees.
The Obama administration is also likely to use its diplomatic leverage to seek guarantees that some transferred detainees will be closely monitored, commitments that the Bush administration has found wanting in the case of countries such as Yemen. Approximately 100 Yemeni prisoners remain at Guantanamo Bay.
Human rights advocates and some advisers expect the new administration to outlaw torture and enhanced interrogation techniques, detain people seized on the battlefield in Iraq and Afghanistan under the traditional laws of war, and insist on criminal prosecution against terrorism suspects seized elsewhere.
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.