Closing Guantánamo prison may force new rules for trying terrorists
Obama will have to find a new balance between civil liberties and national security.
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While advisers to President-elect Obama agree that Guantánamo must close, there is no accord yet over how best to achieve it in a way that signals real change while not endangering US national security.
In a CBS "60 Minutes" television interview on Sunday evening, Mr. Obama said he would act quickly to close Guantánamo and end controversial interrogation practices. "Those are part and parcel of an effort to regain America's moral stature in the world," he said.
No specific decisions on Guantánamo are expected to be made until the new administration's legal and national-security teams are in place. But the broad outlines of how Guantánamo is likely to close are beginning to emerge.
Many of the 250 detainees at the prison camp for terrorists will be transfered to their home country or a third country for continued detention. Some will be set free. The remainder, between 20 and 80 of the detainees, are expected to face some form of terrorism trial.
Much of the current debate is over how those trials should be conducted.
Some analysts say the administration should create a special national security court to prosecute the most difficult terrorism cases. Others insist that the federal court system in the US is robust enough to handle the challenge.
One option not under consideration is to continue using the military commission process set up by the Bush administration and Congress at Guantánamo. That system has produced two convictions, a guilty plea, and a string of critical US Supreme Court decisions.
"We very much need a clean, decisive break from current [Bush administration] policies," says Sarah Mendelson of the Center for Strategic and International Studies (CSIS) in Washington, who wrote a September report on closing Guantánamo. "Only a bold shift is going to convey to the world that we have turned a page on post-9/11 counterterrorism policies."
The CSIS report says in part: "In the view of many around the world, Guantánamo represents indefinite detention, torture, and abuse. Its continued existence is a potential recruiting tool for our enemies and discourages cooperation with our friends. No amount of tinkering – even substantial changes – would fix this problem."
The CSIS report recommends shifting the responsibility for the long-term detention of terrorists to the existing criminal justice system in the US. It rejects the idea that the president can order the indefinite detention of an individual he deems too dangerous to be free.
Other analysts say that the grim realities of fighting terrorism should lead the Obama administration to embrace a more cautious approach, including a specially created national-security court and some form of preventive detention.
"It is easy to criticize. It is much harder to lead when you are accountable for the security of the country," says Charles "Cully" Stimson, who served as deputy assistant Defense secretary for detainee affairs in the Bush administration.