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Dilemma in Guantanamo's waning days

Obama acknowledges that closing the prison will be no easy task and may take years.

January 12, 2009|Carol J. Williams

GUANTANAMO BAY, CUBA — Despite President-elect Barack Obama's call to close the Guantanamo Bay prison and end its war crimes tribunals, it could take years to shut the facility.

Like a mammoth ocean liner, the prison at the U.S. naval base in Cuba cannot easily be turned from its original course as an interrogation site for suspected terrorists -- as Obama conceded Sunday.

Even now, in the waning days of the Bush administration, Guantanamo's perpetual motion is propelling it forward with new trials and 11th-hour changes to detention policies. The Pentagon recently issued an edict that prisoners boycotting a court session would be forcibly extracted from their cells and trussed -- using a stretcher and head vise -- for delivery to a courtroom.

Still, there is a growing consensus that Guantanamo's days are numbered.

Defense Secretary Robert M. Gates, who will retain his post in the new administration, has ordered Pentagon staff to draft plans for closing it. Legal scholars inundated the Obama transition team with proposals on how to do so.

Federal judges in Washington have ordered the release of at least 23 prisoners, ruling there were no grounds to detain them. Three were sent home to Bosnia last month.

About 200 other habeas corpus challenges are working their way through the courts.

However, experts say, political and legal will is not enough to surmount the complex diplomatic and security issues that must be resolved before the prison is closed: where to send those facing prosecution, whether a new court should be created to try them and what to do with those against whom the U.S. has little evidence but deep suspicions.

"The easy part is putting the detainees on a plane and flying them away. The hard part, and the part that is so important to get right, is the policy decisions," said Rear Adm. David Thomas, commander of the prison and interrogation network.

Guantanamo already is a shadow of what it once was. In 2004, more than 700 prisoners crowded into metal-mesh cells erected in rows along a Caribbean shore. The prisoners couldn't see beyond two-story fences topped with concertina wire. Over the years, more than 500 men -- rounded up mostly in Afghanistan and Pakistan after the Sept. 11 attacks -- have been released. Fewer than 250 prisoners remain.

The facility costs $60 million a year and requires the attention of 2,200 soldiers and sailors. That works out to about nine guards per prisoner.

From the earliest days of his presidential campaign, Obama promised to shut Guantanamo. Soon after his election, advisors said the incoming administration would embark on a review of the remaining cases to speed closure of the prison.

On Sunday, Obama acknowledged it would take time but reiterated that Guantanamo would close.

"It is more difficult than I think a lot of people realize," he said on ABC's "This Week."

Prosecutors have said for years that they expect to bring charges against 60 to 80 detainees. Military defense lawyers say the number of committed jihadists who should be put on trial is no more than 40.

Amos N. Guiora of the Institute for Global Security Law and Policy is among those advocating another special tribunal on U.S. soil to handle the remaining cases -- all of which involve classified evidence.

Pretrial procedures are underway for some of the accused terrorists, including confessed Sept. 11 mastermind Khalid Shaikh Mohammed and four suspected accomplices.

UC Berkeley law professors Laurel Fletcher and Eric Stover warn that replicating Guantanamo's tribunals in the U.S. would solve nothing.

"We need to bring this to closure, and that needs to be done accountably and done swiftly," said Fletcher, director of the International Human Rights Law Clinic at Berkeley. "Guantanamo has been devastating for the United States' image in the world and for the rule of law."

Said Anthony D. Romero, executive director of the American Civil Liberties Union: "The only way of fixing the military commissions is scrapping them and starting over in federal court." Critics note that Zacarias Moussaoui, Jose Padilla and dozens of others have been convicted in federal court, and only three have been judged at Guantanamo.

Prisoners not facing prosecution would have to be repatriated, but that has proved difficult.

About 50 prisoners have been cleared for release but remain at Guantanamo because their home countries do not want them or might subject them to abuse.

Removing those prisoners will depend on U.S. collaboration with allies and adversaries.

Most European nations parted ways with the Bush administration over its detention policies and the invasion of Iraq. Despite a State Department appeal to more than 100 countries for help in relocating detainees, only Albania cooperated -- taking five Chinese Muslim Uighurs in 2006.

As a show of good will after Obama's election, however, Portugal, Germany, Britain and Australia have signaled a willingness to help close Guantanamo by taking in some of the prisoners.

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