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Outlook: Obama Seeks Halt to Legal Proceedings at Guantanamo

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Carol Leonnig
Washington Post Staff Writer
Wednesday, January 21, 2009; 1:00 PM

In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba -- a clear break with the approach of the outgoing Bush administration.

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Such a request may not be automatically granted by military judges, and not all defense attorneys may agree to such a suspension. But the move is a first step toward closing a detention facility and system of military trials that became a worldwide symbol of the Bush administration's war on terrorism and its unyielding attitude toward foreign and domestic critics.

Washington Post staff writer Carol Leonnig was online Wednesday, Jan. 21, at 1 p.m. ET to discuss the latest developments. Leonnig covered the federal courts when prisoners at Guantanamo first accused the United States of torturing them in legal claims filed in the court in 2004.

Archive: Transcripts of discussions with Outlook article authors

A transcript follows.

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Los Angeles, Calif.: The neocons' conventional wisdom is "it will take a long time to actually close Guantanamo." But why not transfer the prisoners to U.S. military prisons immediately and take it from there? It seems the knee jerk reaction is to fear trial lawyers in our justice system, but this is the stuff of the neocons -- who used fear argument to get us into two wars and our current fix.

The U.S. justice system is strong and rigorous enough to handle this and many other unique situations. An immediate transfer and closure would demonstrate that the U.S. doesn't have to trade off between national security and liberty, and that the U.S. can handle its challenges, be reasonably transparent about it and not force other (smaller) countries to do our bidding.

President Obama just might close Guantanamo and transfer the prisoners sooner than later.

Carol Leonnig: Good Afternoon, and welcome. Let's get started with your questions about new developments in the first hours of President Obama's administration - the first step to closing a prison for suspected enemy fighters in Guantanamo.

There are some defense lawyers who would argue that detainees held for the last seven years in Guatanamo should be immediately freed for lack of "untainted" evidence that they are indeed enemy combatants.

There are others, including some within the new administration, who would support the idea of trying prisoners in federal courts, and thereby providing them with the normal legal rights afforded in the American justice system.

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Carol Leonnig: Another issue for Obama's administration - and certainly a vexing problem for a President who has indicated he wants to make a major break from the past administration's policy on fighting terror - is how to properly handle those prisoners who are truly a danger to U.S. security and against whom there may also be considerable evidence they were engaged in terrorist plots or even the 9-11 attacks.

You can't simply release those who are dangerous. Yet the administration has indicated several times it does not want to proceed with the current military commission trials based on evidence and statements that may have been made under the coercion of torture.

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Boston, Mass.: Hi,

I always see these articles saying how many Gitmo detainees have returned to the battlefield. Even if the numbers I read are true it does not mean they returned. After the treatment they received it is fairly reasonable to think some might not be so happy with U.S. and be looking to get back at us. It might even be more true of totally innocent guys caught up in our grab them all net. Now we just send them back with no apologies and no anything -- e.g. al-Jazzera reporter and all the rest -- I thnk we should have some pre-release program before turning these prisoners out.

Carol Leonnig: Its very difficult to get a handle on how many detainees return "to the battlefield" after their release. Some of the first detainees released -- the Tipton 3, a group of young men from London let go in spring 2004 -- spent their time making speeches against torture and working on books describing experience in Guantanamo.

The information about returns to enemy fighting came from the Secretary of Defense's office. And you are right, its not implausible that some could want to fight the United States. But who is defining what the battlfield is, and who is doing the counting? I'm reminded by this question of a base commander Gen. Martin Lucenti, who famously said early on in the creation of Guantanamo's prison (2004) that he predicted most of the prisoners would be sent home.

"Most of these guys weren't fighting. They were running."

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washingtonpost.com: Poll: WaPo-ABC poll on Gitmo

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Boston, Mass.: Hi,

Just wondering who is technically in charge of these prisoners the Justice Dept. or the Department of Defense?

Carol Leonnig: The Department of Defense is in charge of the prison, which is located on a U.S. naval base in Cuba. The Bush administration's Justice Department has in the past written opinions blessing certain interrogations and activities regarding enemy fighters who are detained by the U.S., and it has represented the Pentagon and the administration at times when its policies and methods at Guantanamo were challenged.

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Washington, D.C.: Every war we have ever fought has included military tribunals for those picked up on the battlefield. In this case, the people were fighting for stateless armies and they own countries won't take them back.

Why, this time around, are military tribunals a bad thing?

Carol Leonnig: I don't have a personal opinion here. But I would point you to the rulings of several different judges and courts on this question, starting with the first ruling striking down the military commissions as illegal by U.S. District Judge James Robertson, back in 2004.

In that case, involing Salim Hamdan, the man alleged to be Osama bin Laden's driver, the court found that the commissioners created by the Bush administration in the wake of 9-11 were very different than those of the past, and their very structure violated the Uniform Code of Military Justice and international treaties like the Geneva Convention. As well, there continues to be the question of how the evidence against prisoners was obtained. Many defense lawyers argue the strongest evidence against their client is often the confession or statement of someone who gave that statement under duress in interrogations.

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Wokingham, U.K.: Is one of the problems that a proper trial in any available form would allow the defendants to indulge in rhetoric that was certain to win sympathy and support among many Third World and even some Western hearers?

Carol Leonnig: I don't think a venue for rhetoric is what is shaping this debate. Even in current commissions, much has been printed round the world about what the accused argue. Based on the earlier comments then President-Elect Obama about the commissions, this is his administrating carving out a different strategy for communicating to other countries how the U.S. will handle suspected terrorists.

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Washington, D.C.: The Post's story today said three military commission trials have been completed. Who were the three?

washingtonpost.com: Judge Suspends Guantanamo Cases at Obama's Request (Post Jan. 21)

Carol Leonnig: Australian David Hicks pleaded guilty to aiding the Taliban, and was sent home to serve a nine-month sentence.

A military commission convicted Osama Bin Laden's former driver, Salim Hamdan, of supporting terrorism in 2008. He was handed a 5 1/2 year sentence, but was returned to Yemen shortly after his conviction based on time served.

Also last year, the Pentagon dropped charges against Saudi citizen Mohammad al-Qahtani because the convening authority concluded the evidence against him was tainted by torture and could not be used.

Right now, there are four cases on hold that were about to go forward with the confessions of the accused: alleged 9/11 mastermind Khalid Sheikh Mohammed, Ali Abd al-Aziz Ali, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi and Walid bin Attash.

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Carol Leonnig: I don't have a personal opinion here. : So does that mean if KSM was found to be tortured, he should be set free to it all over again...

Carol Leonnig: This is a great question: how to proceed? Nobody wants dangerous, confessed terrorists free, not the U.S. , not our allies, not the home countries of the accused. And the current administration is now tackling that quandry, which is why they've asked for the 120-day review.

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RE: Your Response to Los Angeles: You say another issue is "how to properly handle those prisoners who are truly a danger to U.S. security and against whom there may also be considerable evidence they were engaged in terrorist plots or even the 9/11 attacks." I'm not sure why you used the word "truly." Does this imply a level of objectivity that would stand legal scrutiny? In any event, if anyone engages in terrorist plots (conspiracies) or terrorist acts against the U.S. or our allies, the case should be made in a legal process, they should be convicted and sentenced or let go if not convicted. Holding people indefinitely without a judicial process is un-American. Is the only evidence against these people that they are "truly a danger" the word of Bush/Cheney folks?

Carol Leonnig: When we're talking about evidence that someone was engaged in enemy fighting or terrorist acts against the United States, it's worthwhile to remember some of the numbers about Guantanamo. A large portion of the original prisoners airlifted there in 2002 as "enemy combantants" turned out to be nobodies that were not engaged in any enemy fighting, but were picked up in a chaotic atmosphere in Afghanistan and Pakistan in the fall of 2001 after U.S. troops arrived there.

Before departing, the Bush administration had planned to try about 60 to 80 of the 245 foreign inmates who were still held at Guantanamo. The camp over its time has detained more than 600 prisoners. And yet there have been only a tiny handful of commission cases. Most have been released.

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Washington, D.C.: Major David Frakt here. I represent Mohammad Jawad and Ali al Bahlul.

This "order" from President Obama does not in fact suspend the commissions and leaves many questions unanswered.

1. What happens to the habeas corpus petitions filed by detainees facing charges referred to the commissions? The Justice Department has sought and received stays in these habeas petitions pending the resolution of the commission cases. Will these habeas petitions be stayed for 120 days while these cases are reviewed? This is completely unacceptable.

What about the convictions of Hamdan and Al Bahlul? Are those also going to be reviewed in a manner other than in the procedures spelled out in the Military COmmissions Act?

What about the Mohammed Jawad case? Proceedings at the trial level have been stayed while the government has pursued an interlocutory appeal to the CMCR. Therefore, the government cannot request a continuance in that case because the trial judge (Col Henley) currently has no power to rule on any motions.

Carol Leonnig: Very good question. And I cannot speak to the impact on the specific cases, but I know that the new administration has implied that it hopes for a broad interpretation of its request for the 120-day review to include major commission-related activity.

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Fairfax, Va.: Will they ever prosecute people for 9/11? It's been seven years. No bin Laden, not much of anything, except suspects being kept in jail. This doesn't seem like a very good system. Will Obama change any of it?

Carol Leonnig: Apparently, this request is his attempt to buy time to create a new system. But Susan Crawford's recent comments and admission that the U.S. tortured a detainee makes clear that many in the military don't want to sanction a process that that would rely on what they consider tainted, questionable evidence.

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RE: Your Response to Washington, D.C.: After the 2004 ruling by U.S. District Judge James Robertson, why didn't the Bush/Cheney administration change the commissions to conform with the Uniform Code of Military Justice and international treaties like the Geneva Convention? Might this lack of corrective action by Bush/Cheney speak volumes about how the evidence against prisoners was obtained?

Carol Leonnig: I don't know the answer about why, but many federal judges at the trial court level joke that they don't kid themselves into thinking anyone in the executive branch is listening to them, and rather its the appeals court and the Supreme Court rulings that get an administration's attention. In this case, and many related to suspected terrorists' detention and anti-terrorism measures,the Bush administration made clear that they would go to the Supreme Court again and again to try to protect its assertion of an executive's broad powers to fight a war on terror.

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Princeton, N.J.: Abdul Razzaq Hekmati was regarded in Afghanistan as a war hero, famous for his resistance to the Russian occupation in the 1980s and later for a daring prison break he organized for three opponents of the Taliban government in 1999. In 2003 he was arrested by the U.S. Army and sent to Guantanamo. He was kept there without the faintest vestige of due process. On 12/30/2007 he died after a long a painful battle with cancer. He died without his family and friends, thousands of miles from the country he loved. Is there any hope we can persuade the Afghan people and, indeed, the rest of the world that we are a good and decent people?

Carol Leonnig: There are many cases of detainees whom the government held for years on the argument that they were a serious danger to U.S. security. Feroz Abbasi, a 21-year-old computer student from Long, Murat Kurnaz, a German religious tourist travelling on a bus with missionaries, Mr. Lakhdar Boumedienne, a Bosnian born in Algeria. All were accused of fighting for terror, whether it be in al-Qaeda training camps or making bomb plots against US embassies and soldiers. Yet records show little actual evidence that they were. Abbasi and Kurnaz are now free. Boumedienne was ordered released by a federal judge last year.

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Carol Leonnig: Thanks to everyone for their very informed questions. We'll look to see what the administration does and says in the coming days and weeks on its proposed next steps for Guantanamo.

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Editor's Note: washingtonpost.com moderators retain editorial control over Discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions. washingtonpost.com is not responsible for any content posted by third parties.


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