By Peter Finn
Washington Post Staff Writer
Wednesday, June 10, 2009
The Obama administration pressed ahead yesterday with its plans to close the military prison at Guantanamo Bay, flying a detainee to New York to face federal trial despite bipartisan opposition in Congress to bringing such prisoners to the United States for trial, resettlement or continued detention.
The transfer of Ahmed Ghailani to face capital charges in the 1998 East Africa bombings marked the first time a detainee who is not an American citizen has been brought from the prison in Cuba to the United States. Ghailani, appearing briefly in U.S. District Court in Manhattan yesterday, pleaded not guilty to multiple charges in connection with the blasts at the U.S. embassies in Tanzania and Kenya. Those attacks killed 224 people, including 12 Americans.
Human rights groups, which earlier expressed dismay about President Obama's announcement that some suspects would be tried in reformed military commissions, welcomed Ghailani's transfer. But Republicans and some military groups, who were cheered by the prospect of renewed military tribunals, sharply attacked the decision to hold any trials in the United States.
"By bringing Ghailani's case into the federal court system without a policy or plan on how to deal with the larger Gitmo issue, the Obama administration is again taking a piecemeal approach to a major national security issue," said Kirk S. Lippold, a senior military fellow at Military Families United who was commander of the USS Cole when it was bombed in Yemen in 2000.
Since it announced its decision to close the Guantanamo Bay prison by next January, the administration has been treading a politically treacherous path between the wishes of its liberal constituency and the fears of conservative critics, pleasing and upsetting both at different times.
A senior national security official, who spoke on the condition of anonymity to discuss the decision-making surrounding Ghailani, said the timing of yesterday's transfer "reiterates a message that we believe the system we inherited was broken and not sustainable and needed to be reformed." The official said Obama has no intention of backing away from his belief that Guantanamo Bay is "part of a detention system that had largely failed."
Last month, the Senate voted 90 to 6 to withhold funding for the closure of the military prison. Senate Minority Leader Mitch McConnell (R-Ky.) said yesterday that the president, in authorizing the transfer of Ghailani, was ignoring the "clear desire of Congress and the American people that these terrorists not be brought to the United States."
McConnell also questioned whether Obama has the authority to transfer detainees, saying, "There's an argument that existing law prohibits bringing terrorists into the United States." He declined to say whether Congress would consider further action to stop the administration from bringing other detainees here.
In his briefing to reporters, White House press secretary Robert Gibbs ignored questions about whether moving Ghailani to New York essentially bypassed Congress. He insisted the timing of the move was driven by a desire for justice in a case that dates back more than 10 years.
Federal prosecutors allege that Ghailani, now 35, obtained bomb materials, scouted the embassy in the Tanzanian capital and escorted an Egyptian suicide bomber from Kenya to Dar es Salaam in advance of the attack. Shortly before the bombing, Ghailani, using a false passport, fled to Afghanistan along with a number of alleged co-conspirators. Military prosecutors said he worked as a trainer at a terrorist camp there.
A former Islamic cleric, Ghailani was captured after a 10-hour shootout in the Pakistani city of Gujrat in July 2004. He was taken to a secret CIA prison before he and 13 other "high-value" detainees -- including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks -- were transferred to Cuba.
At a 2007 military hearing at Guantanamo Bay, Ghailani attempted to present himself as an unwitting participant in the embassy bombings.
"I would like to apologize to the United States government for what I did before," he said. "It was without my knowledge what they were doing, but I helped them."
With Ghailani's transfer, 238 detainees remain at Guantanamo Bay. A Justice Department-led interagency task force is examining the case of each detainee to recommend how to move forward, but the process is painstaking, and political opposition to the prison's closure has threatened to overwhelm Obama's plans.
Although Ghailani's transfer establishes a precedent that the administration can and will bring detainees to the United States, Obama faces a host of other issues before closing the facility. In a speech last month, he said some detainees may have to be held indefinitely without trial because they are deemed too dangerous to release and because their prosecution would present difficulties given evidence tainted by harsh interrogation tactics, or a lack of compelling evidence.
Some Senate leaders, as well as human rights groups, have signaled that they will fight any system of prolonged detention.
"Any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional," said Sen. Russell Feingold (D-Wis.), who held a hearing on the issue yesterday. "Indefinite detention without charge or trial is a hallmark of abusive systems that we have historically criticized around the world."
Some in Congress also remain vehemently opposed to resettling in the United States any detainees who have been ordered released by the courts, a stance that has complicated efforts to persuade U.S. allies to accept some inmates who cannot be sent home because of fear of torture or execution. Some European allies are reluctant to resettle detainees unless the United States does the same, forcing the administration to turn elsewhere. A government official confirmed an Associated Press report yesterday that talks have been held with authorities in Palau, a remote South Pacific island, about resettling some of the 17 Chinese Uighurs cleared for release from Guantanamo Bay. [Early today, Palau's president told the AP his government had agreed to the request.]
Yasir Esam Hamdi, who was captured in Afghanistan in 2001, was detained at Guantanamo Bay until it was discovered he was a U.S. citizen. He was then moved to military facilities in the United States and then transferred to Saudi Arabia.
The administration must also decide where to prosecute the remaining detainees, either in federal court or before military commissions. Officials are considering legislative changes to the 2006 Military Commissions Act that would allow defendants to plead guilty in capital cases in a military tribunal, according to a military official who has reviewed a draft document. The proposal, which was first reported by the New York Times, would clear the way for Mohammed and others to be sentenced to death without airing their treatment when they were held in secret CIA prisons.
No decision has been made on whether to try Mohammed and four other Sept. 11 defendants in a military commission, administration officials said. Tom Malinowski, the head of the Washington office of Human Rights Watch, said a death sentence after a military tribunal would lack legitimacy, particularly with the international community, and would be a "fatal mistake."
Staff writers Perry Bacon Jr., Michael D. Shear and Robin Shulman and staff researcher Julie Tate contributed to this report.