Closing Guantanamo Bay is not easy for Barack Obama

By JOSH GERSTEIN 5/21/09

During the campaign, it all sounded so simple. Shut down the Guantanamo Bay prison, which critics around the world called a symbol of U.S. disregard for human rights. As president, Barack Obama has found the specifics of closing Gitmo far more complicated. e!ll use a speech "hursday morning to try to wrestle back control of the first big debate where e#en his own party has turned against him. At the same time across town, former $ice %resident Dick Cheney will offer a sharply opposing #iew of a facility that &heney argues is the proper place to lock up America!s enemies. At issue' about ()* men still at the military prison. "he problem isn!t +ust that ,uropean and other allies ha#e made clear they don!t want them. Or that Democrats and -epublicans ha#e both said not.in.my. backyard. "here are host of legal and ethical issues at play that are making Obama!s goal of closing Gitmo in /anuary recede e#er further from reach. ere are some of them' The toughest problem isnt the worst of the worst. Its the not-so-bad guys. Al 0aeda leaders like Sept. 11 mastermind 2halid Sheikh 3ohammed strike fear into the hearts of many Americans 4 but pretty much e#eryone agrees those guys should stay locked up fore#er. 5t!s the in.between guys that are the more challenging problem 4 rank.and.file prisoners who may ha#e played some role in Al 0aeda or "aliban acti#ity, but aren!t suspected of taking part in any ma+or attacks. 6"he big problem is not 2S3. 5t!s 3ohammed 3ohammed,7 said laywer Da#id -emes, who represents clients at the prison, alluding to a metaphorical Guantanamo e#eryman. 6"he big problem is not going to be with potential defendants89e!re going to do something with them. 5t!s the indefinite detention guys.7 Obama has set out new rules for military commissions to try some of the cases, and some detainees, probably fewer than two do:en, are e;pected to be tried in federal ci#ilian courts. But e#en Obama doesn!t en#ision sending e#eryone left at Gitmo through a trial. So disposing of these lesser figures could simply mean bringing them to U.S. prisons 4 which members of &ongress from both parties strenuously resist < or e#en seeing them someday released.

63aybe =* of ()1 are going to face some kind of criminal tribunal or re#ised military commission or Article 555 court,7 Duke law professor and former military lawyer Scott Silliman said. 69hat do you do with the rest of them where there!s no e#idence of criminality<or no usable e#idence>7 ot e!eryone thinks theyre as dangerous as the "nited #tates does. A few countries like /ordan and ,gypt ha#e agreed to take Guantanamo Bay prisoners 4 but ha#en!t agreed to treat them as the U.S. would like, by keeping them under lock.and.key, or tight sur#eillance. %erhaps 1?* of the prisoners could someday be released to foreign countries 4 if they would ha#e them, which, for now, seems unlikely. 6"hey!re basically saying, @Aou!#e held our citi:ens for si; years and ne#er charged them. 5t!s a little much to +ust ask us to take o#er the +ailers! keys,!7 Silliman said. "hat could cause a huge political headache for Obama, especially if he!s seen as sending prisoners back to countries that will merely turn them loose 4 to potentially return to plotting against the United States. A new %entagon report estimates roughly 1 in B prisoners already released from Gitmo under %resident George 9. Bush did +ust that, and all it would take would be one e;.Gitmo prisoner caught in a future attack to e;pose Obama to charges he threw open the +ail doors. But Silliman said the U.S. may simply ha#e to ca#e on the monitoring issue to unload more prisoners. 6"he only #iable option ... may be much less assurance of restraint,7 he said. Obama also had hoped some $uropean allies would take more of the prisoners, as a way to help out his new administration, but that hasnCt panned out. Drance, for instance, agreed to take a single one.

Inside %arack &bama's (lan to Close Guantanamo

By 3assimo &alabresi Driday, Eo#. (*, (**F

%resident Barack Obama will miss his self.imposed /an. (( deadline to close down the military detention center at GuantGnamo Bay. But sources familiar with the issue tell "53, that the %resident could notify &ongress of his contro#ersial plan to shutter the facility < and begin mo#ing detainees out < in a matter of weeks. H5n the coming weeks, we do anticipate that weCll reach resolution on these issues,H a 9hite ouse official says, speaking on condition of anonymity. (*I detainees remain in the prison, and a Hgoodly numberH may be relocated before the end of the year, says another senior Administration official. ObamaCs plan is e;pected to include measures that will anger both the right and the left in 9ashington. Dor e;ample, up to F* suspected terrorists could face indefinite detention, a Bush tactic sharply critici:ed by human.rights acti#ists and also by Obama himself during his presidential campaign. But conser#ati#es will be infuriated by the prospect of some detainees being released entirely < Administration officials e;pect some Aemenis who were once thought to be dangerous to win habeas corpus cases currently under way in 9ashington, D.&., courts. Other detainees will be repatriated to face trial in their home countries, which will lead either to +ail or release. And some detainees will be transferred to third countries, most of them ,uropean, for trial or Hsuper#ised release,H according to those familiar with the plan. "he Administration also plans to announce further trials in U.S. federal courts < like those planned for the alleged FJ11 conspirators in Eew Aork &ity < and for more detainees to face military commissions. Among the most contentious issues the Administration has had to grapple with o#er closing Gitmo is that of indefinite detention. Obama opposed it during the campaign and suspended it on entering office, but then pre.empted a debate among his top ad#isers by embracing it at a speech at the Eational Archi#es 3ay (1. Since then, e;perts within the go#ernment ha#e struggled to come up with a policy that can reconcile the %residentCs ideological opposition to indefinite detention with the apparent need to make use of it in order to close GuantGnamo. uman.rights groups ha#e urged Obama to apply indefinite detention only to the detainees

currently at the facility, and not to future prisoners. liberal responses to ObamaCs Gitmo plan.

ow that Kuestion is settled could shape

Some =* detainees ha#e already been identified to be placed under what is being called Hlaw of war detention,H which allows them to be held indefinitely, and a further L* could fall into that category. 5t has not yet been decided where all the prisoners under law of war detention might be sent, but most are e;pected to go to a facility in "homson, 5ll., or one other facility that is being looked at by the Administration. "he State Department e;pects to be able to mo#e )* prisoners to other countries. "he toughest group to handle has been the appro;imately 1** Aemeni prisoners, many of whom are suspected of being dedicated cadres of al.0aeda despite the absence of usable e#idence against them. H9eCre going through our options with the Aemenis,H says one official. 5n what is becoming a familiar approach, the Administration is bridging the gap between a principled promise to close Gitmo and the legal and security challenges in#ol#ed by producing a package with elements to please < and outrage < e#eryone. Gi#en Attorney General ,ric olderCs Senate grilling this week o#er the decision to try the FJ11 accused in Eew Aork &ity, the Administration can e;pect to face attacks from all sides when &apitol Gitmo plan. ill gets hold of its

US: Obamas First Year Record on Counterterrorism Reform Mixed

Key Bush-Era Abuses Repudiated, but Major Problems Remain
JANUARY 14, 2010

(New York) - US President Barack Obama has made significant progress in his first year in office toward ending the Bush administration s abusi!e counterterrorism po"icies# but he has a"so made some serious missteps# $uman %ights &atch said in a background paper re"eased today' ()ounterterrorism and $uman %ights* + %eport )ard on President Obama s ,irst Year#( re!iews the Obama administration s ad!ances# ana"y-es its mistakes and urges more meaningfu" and e.tensi!e reforms' (President Obama has done the right thing by ending the )/+ s secret prison program and trying to c"ose 0uantanamo#( said 1oanne 2ariner# terrorism and counterterrorism director at $uman %ights &atch' (Unfortunate"y# he has a"so adopted many of the Bush administration s most misguided po"icies'( +mong the administration s key accomp"ishments# $uman %ights &atch cited e.ecuti!e orders to c"ose secret )/+ prisons and ban torture and other mistreatment by a"" US personne"# and its decision to transfer the prosecution of the a""eged 3455 perpetrators from a mi"itary commission to a US federa" court' $uman %ights &atch sing"ed out the administration s continued re"iance on indefinite detention without charge - inc"uding in its upcoming p"ans to transfer some detainees from 0uantanamo to a prison in 6homson# /""inois - as being its most serious misstep' ()"osing 0uantanamo by effecti!e"y mo!ing the prison onto US soi" won t so"!e the prob"em#( 2ariner said' (6he administration needs to prosecute the detainees imp"icated in crimes# and either repatriate or resett"e the rest'( $uman %ights &atch said that the administration s record was a"so marred by its re!i!a" of the discredited mi"itary commissions to prosecute some defendants7 its re"uctance to seek accountabi"ity for past abuses by US officia"s7 and its efforts to obtain the dismissa" of ci!i" cases a""eging torture by asserting the state secrets pri!i"ege' $uman %ights &atch acknow"edged that the Bush administration s "egacy of abuse posed daunting cha""enges# inc"uding reso"!ing the cases of the more than 89: prisoners he"d at 0uantanamo when Obama took office' 6he attempted bombing of a US air"iner on ;ecember 8<# 8::3# by a Nigerian man

with a""eged "inks to Yemen has e.acerbated the difficu"ty of c"osing the faci"ity and returning Yemeni detainees to their country' $uman %ights &atch said that Yemenis at 0uantanamo shou"d not endure continued detention for a crime carried out without their participation or know"edge' /t urged the administration to work with Yemen on a p"an for the safe repatriation or resett"ement in other countries of the Yemeni detainees who are not sub=ect to crimina" prosecution' $uman %ights &atch a"so ca""ed on both go!ernments to pro!ide returnees with socia" and medica" ser!ices to aid their reintegration and make them "ess !u"nerab"e to recruitment by mi"itant groups' /n addition# $uman %ights &atch critici-ed the administration s continued re"iance on an o!erbroad understanding of the state secrets doctrine# which has resu"ted in cases brought by persons a""eging to ha!e been tortured being thrown out of court before they can be heard on the merits' By improper"y asserting that disc"osing information about whether p"aintiffs were tortured wou"d damage nationa" security# the Obama administration has barred !ictims of abuse from seeking redress' &hi"e $uman %ights &atch praised the administration for dec"assifying Bush-era 1ustice ;epartment memos that pro!ided the "ega" framework for the use of (enhanced interrogation techni>ues#( as we"" as for re"easing a report from the )/+ s /nspector 0enera" s office detai"ing a range of )/+ abuses# it critici-ed Obama s decision to b"ock the re"ease of photographs depicting detainee abuse by US troops' $uman %ights &atch a"so ca""ed on the Obama administration to take more !igorous steps to ensure that senior officia"s responsib"e for abusi!e Bush-era po"icies are he"d accountab"e' /t raised concerns that the pre"iminary re!iew of )/+ abuses ordered by +ttorney 0enera" ?ric $o"der was focused on so-ca""ed (unauthori-ed( interrogation techni>ues# and was un"ike"y to "ook up the chain of command to the senior"e!e" officia"s who p"anned# ordered# and faci"itated abuses' &ithout the deterrence pro!ided by meaningfu" accountabi"ity# $uman %ights &atch said# practices "ike torture and enforced disappearance wi"" remain a!ai"ab"e to future administrations as po"icy options' (By abo"ishing secret )/+ prisons and banning a"" use of torture# President Obama took important steps toward setting a new course#( 2ariner said' (But to renew +merica s commitment to human rights and US constitutiona" !a"ues# the Obama administration wi"" ha!e to confront the past as we""' On"y by in!estigating and prosecuting torture and other crimes against detainees wi"" the US go!ernment be understood to ha!e surmounted them'(