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Guantanamo at crossroads

Closing the prison isn't enough -- Obama must also end the policy of indefinite detention.

December 27, 2009

On Jan. 22, President Obama almost certainly will miss his self-imposed deadline for closing the notorious detention facility at Guantanamo Bay in Cuba, which has caused incalculable damage to the image of the U.S. and added a foreign policy dimension to the axiom that "justice delayed is justice denied."

We're disappointed that Obama hasn't fulfilled his promise, but fortunately, that isn't the whole story. The administration is moving in the right direction, and recently has taken two important steps: It decided to move as many as 100 Guantanamo inmates to a prison in Illinois. It also said it would return six detainees to Yemen and six others to either Afghanistan or Somaliland. The repatriation of the Yemenis is significant because nearly half of the remaining 200-odd Guantanamo detainees are from Yemen -- and if six can go home, why not the rest?

More remains to be done. The president must not only close the prison but also ensure a meaningful day in court for those detainees who have not yet had one. Here, too, there was progress in 2009: Obama announced that the alleged 9/11 plotters would be tried in civilian court. We're pleased that he's willing to seek justice in open court where the defendants will enjoy rights guaranteed by the Constitution. Unwisely, the administration also announced that suspects in the 2000 bombing of the U.S. destroyer Cole would be tried in retooled military commissions, thereby embracing a two-tier system of justice.

Looking forward, Obama must be prepared to expend political capital opposing inevitable attempts in Congress to block or micromanage the transfer of detainees to the U.S. Equally important, he must provide the same rights he has accorded Khalid Shaikh Mohammed to more obscure detainees.

In announcing that he would close Guantanamo, Obama reserved the right to detain indefinitely those "who cannot be prosecuted yet who pose a clear danger to the American people." He has justified this by citing Congress' vote to authorize the president to use "all necessary and appropriate force" against those complicit in 9/11.

The Supreme Court has accepted that reasoning but it also has ruled that detainees have the right to challenge their confinement in federal court -- though without giving lower courts much guidance about what rules to apply.

If the president continues to insist that the "worst of the worst" can be held without trial, he must explain why and establish procedures to guarantee that their confinement won't be prolonged by inertia or indifference. Obama must do more than close Guantanamo, the prison; he must end Guantanamo, the policy.

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