During his campaign for the White House, President-elect Barack Obama was unequivocal about closing the remote U.S. prison camp at Guantanamo Bay, Cuba. Just days after he won the presidential election, a transition team made up of analysts, lawyers and military officials began tackling the Guantanamo issue.
They started sifting through the files of the roughly 250 men still held there, looking at the intelligence on — and the evidence against — the prisoners, trying to come up with new ideas to solve the Guantanamo conundrum.
This was very much what John Bellinger has faced as legal adviser to Secretary of State Condoleezza Rice over the past four years. "We're seeing the new team coming in, grappling with some of these same issues. These issues are very hard," he says.
Bellinger is now helping the transition team. "I have no doubt that the next team will move to close Guantanamo rapidly," he says, "but they will be bedeviled with the same issues that we have."
Those issues center on what to do with the terror suspects if the Guantanamo prison camp is shuttered. Bellinger's office was instrumental in bringing about the release or repatriation of about 500 of the Guantanamo prisoners. About another 60 are cleared to go, but there are problems finding countries willing to take them.
Bobby Chesney, a Wake Forest University law professor specializing in national security and legal issues, says the new Obama administration should capitalize on its vast reservoir of international good will.
"There's some talk that, with a new administration on the way, that other states, perhaps some European states, may be willing to take in some detainees," Chesney says. "But a lot of the smoke signals in that area suggest that the United States has to be willing to do some of the same. And there's not a lot of reason to believe there's a lot of interest in doing that."
Still, it's widely believed that if and when the Guantanamo camp is closed, the prisoners will be brought to the U.S. mainland.
Sandy Hodgkinson, deputy assistant secretary of defense for detainee issues, says the new administration will have to decide where to keep the men. She says it's easier nowadays to decide what to do with the prisoners.
"As you continue to get the population down to a number of individuals who pose the highest threat of the original population, I think the options become a little bit cleaner and clearer," she says. "Partly because the original population of nearly 800 people would have overwhelmed any one of our military detention facilities for certain, and would have overwhelmed likewise federal prisons that we have, such as Supermax or elsewhere, where we've held high-threat people before."
Hodgkinson says federal law requires that the prisoners be segregated from the regular prison population. "You would require some modifications to any existing facilities to ensure the security situation was adequately mitigated by the Department of Defense," she says. The prisons would also need to have the same types of facilities as there are at Guantanamo Bay, she says, "so you would need, obviously, additional medical facilities, you would need additional transportation options."
Obama may have to spend some of his domestic political capital finding a location for the Guantanamo prisoners. The Pentagon has faced outright anger from community and political leaders in virtually every location — civilian or military — it's checked out.
Things get even trickier when it comes to prosecuting the suspects. The Obama team will have to decide under which system to try the men. Bellinger says some of the key terror and counterterrorism statutes were not on the books when many of the Guantanamo detainees were picked up.
"So, for an average Yemeni or Saudi who had traveled to Afghanistan to simply train but had not yet formed a terrorist plot, [it's] not altogether clear that someone could be tried in federal court for that," Bellinger says.
One option would be to create national security courts, which would have greater latitude for classified material and hearsay. That would require legislation, and many analysts say national security courts would be too much like the troubled military commissions now in place at Guantanamo. Bradford Berenson, a Washington lawyer who helped draw up the policies for the military commissions, says the new administration has a much tougher problem to solve than just figuring out how to prosecute the terror suspects.
"What are you going to do with the detainees who cannot be tried in a normal court proceeding, but who are also too dangerous to release back out into the world?" Berenson asks.
There are currently about 80 Guantanamo prisoners who fall into that category — there's not enough evidence to prosecute them, but U.S. intelligence agencies believe the men would pose a serious risk if released.
"I think the policies that have led to preventive detention for suspected terrorists at Guantanamo will probably change far less in the new administration than many people on the left hope and expect," Berenson says. "And that's because those policies were not adopted out of some excessive ideological zeal, they were adopted out of a sincere and genuine concern for protecting the public, and they're based on reality and facts that can't be wished away."
Some analysts say the new administration should not perpetuate the policy of preventive detention — that it should prosecute the men and run the risk of acquittal. The question is if a suspect is acquitted, and no other country will take him, would he be free to walk out the front door of the courtroom?
Bellinger says that because of these thorny issues, it's important that Obama get congressional backing for whatever policies he puts in place.
"I do think the new administration will need to seek Congress' assistance in closing Guantanamo," he says, "not that the president can't move individuals legally to the U.S. without Congress' authority, but ... the new team will find it important to have Congress' legislative authority to hold people and under what terms, so that as the detention is challenged, the courts will look to a shared understanding between the executive and the legislative."
Wake Forest's Chesney says the new administration also needs to think beyond Guantanamo. "My advice would be to be mindful of how the policies designed to shut down and deal with Guantanamo may relate to larger questions ... going forward," he says. "Such as, what's our detention policy in connection with ongoing armed conflict in Afghanistan and Pakistan."