Earlier this week, human rights activists, civil libertarians—and, let's face it, just about every sentient American—got some good news from unnamed sources inside the emerging administration-elect: President Obama is apparently already working on a plan to close Guantanamo Bay.
This is hardly a surprise. Defense Secretary Robert Gates and Secretary of State Condoleezza Rice, who don't often find themselves lining up alongside the ACLU, went on record months ago about the need to shutter the prison camp. These days, the conventional wisdom on both left and right is that Guantanamo is not just doing serious damage to America's international reputation; its continued existence has doubtless become a valuable propaganda tool to Islamic fundamentalists. Put in starker terms, a detention facility that was intended to help protect America from another terrorist attack may well have increased the possibility of one.
So Gitmo must go. The question is: What will the Obama administration do with the approximately 250 detainees still imprisoned there?
The first thing to note is what will not happen to these detainees. They will almost certainly not be tried in military commissions. These, recall, were the special war-crimes courts that President Bush unilaterally summoned into being via military order in November 2001. In the seven years that have passed since then, a grand total of two detainees have been successfully prosecuted in military commissions: Osama Bin Laden's driver Salim Hamdan, and al-Qaida propagandist Ali Hamzi al-Bahlul.
And I am using the term successfully in its loosest sense. When Hamdan was brought to trial this past summer, the government was aiming to put him behind bars for 30 years to life. After being acquitted on the most serious charge brought against him—conspiracy to support terrorism—Hamdan was given just five and a half years. Factoring in time served, that meant a sentence of less than five months. His time will have been served at the end of the year. (It remains to be seen whether Hamdan will actually be released, though, as the administration has claimed the authority to hold him as an enemy combatant until the end of the hostilities in the war on terror.)
Believe it or not, at least from the perspective of the Bush administration's legacy, that's the good news. The bad news is that these military commissions have been almost universally denounced as kangaroo courts. To underscore the point, the conservative Supreme Court has declared them unlawful not once but twice, first in Hamdan v. Rumsfeld (when the justices ruled that the commissions lacked proper congressional authorization and violated due-process guarantees provided by the Geneva Conventions and the Uniform Code of Military Justice) and more recently in Boumediene v. Bush (when the justices concluded that the Military Commissions Act of 2006—Congress' legislative effort to sanction the commissions—amounted to an unconstitutional suspension of habeas corpus). Given the court's long-standing reluctance to check the president during times of armed conflict, between Hamdan and Boumediene—and two other dramatic war-on-terror rulings against the president—the Bush administration has made constitutional history.
All of this is to say that the military commissions are too tainted to represent a realistic venue in which to try suspected terrorists, particularly for an incoming administration that will be understandably eager to distance itself from the failed policies of its predecessor. In retrospect, it's easy enough to see where the Bush administration went wrong with the military commissions—and, for that matter, with its entire prosecution of the war on terror: In its zeal to protect our national security, it overlooked the fact that upholding such basic rule-of-law values as a defendant's right to a fair trial are important interests in their own right and also have a valuable role to play in combating terrorism.
Of course, identifying the problem is a lot easier than fixing it. The daunting challenge Obama now faces is to figure out how to preserve and promote rule-of-law values and restore civil liberties while at the same time protecting our intelligence—not to mention the sources and methods used to gather it—and ensuring that no one who poses a serious threat to the United States is set free.
Meeting that challenge will begin with carefully sifting through the classified files of the remaining prisoners to determine who warrants continued detention. The Bush administration has already identified 50 or so men whom it would like to transfer out of Guantanamo. The problem, in some cases, has been finding a country that will take them and not persecute them. In other cases, the obstacle has been reaching an agreement with their home countries—that includes you, Yemen—to either continue to imprison them or at least keep close tabs on their activities.
But even if these men are eventually released, there will be others that the new administration will want to keep behind bars. For them, one possibility would be for Obama to ask Congress to pass some sort of legislation expanding his authority to detain suspected terrorists for preventive reasons. Another option is prosecution.
It seems safe to say that Obama's preferred venue for trial will be the federal courts. This is the approach many on the left have been agitating for since 9/11. Last May, Human Rights First issued a 183-page report, "In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts," aimed at supporting this argument. As Matthew Waxman, a law professor at Columbia who worked on detainee issues in the Defense Department, notes, the federal courts are now much better-equipped to deal with terrorism cases than they were at the time of the Sept. 11 attacks. In addition to all the resources we have devoted to our federal anti-terrorism infrastructure in those intervening years, our criminal statutes have been revised to accommodate greater liability for conspiring with terrorist groups, and federal judges are now more experienced at dealing with sensitive information.
But there has also been at least one report that Obama is considering an alternative to both President Bush's much-maligned military commissions and the federal judicial system—a newly created system of national security courts. These courts would likely be composed of federal judges with lifetime tenure and would function along the lines of existing specialized courts that deal with complicated issues like bankruptcy.
In a sense, the advantages of prosecuting suspected terrorists in a national security court would be the same as its disadvantages: It would presumably afford more flexibility than a regular federal court for, say, things like the standard of proof for admitting evidence collected on the battlefield in Afghanistan. The idea was first floated in July 2007 in a New York Times op-ed co-authored by Neal Katyal, who represented Hamdan at the Supreme Court, and Jack Goldsmith, a former assistant attorney general in the Bush administration. It has since been widely derided by human rights and civil liberties lawyers (among others) who warn that the creation of such a court would represent a rejection of fundamental principles of American constitutional law—and would, in turn, raise the same legitimacy questions as the military commissions themselves.
On Monday, the Associated Press ran a story, attributed to three unnamed Obama advisers, claiming that he was planning to go forward with a proposal for national security courts. Hours later, though, Denis McDonough, a senior Obama adviser, told CNN that no such decisions had been made. McDonough's correction—or, at the very least, qualification—makes sense. Until President Obama's national security team is in place and has studied the files of the remaining detainees, it's hard to imagine that there will be much progress on the specifics of how to deal with these men.
That day will arrive, though, and when it does, the question will come down to whether the new president feels that he can rely on the criminal-justice system to convict individuals he doesn't want to release. The Human Rights First report justly cites dozens of successful criminal terrorism prosecutions, but it's worth remembering that those were all cases that the Justice Department chose to prosecute in the federal courts.
Obama's flexibility to handle the remaining detainees as he sees fit will be constrained by the manner in which they have been treated while in U.S. custody. Remember that Hamdan was chosen as the first defendant for the military commissions in large part because the prosecution thought it has a "clean" case against him—and yet on the very first day of his trial, his military judge threw out a number of his statements to interrogators, ruling that they had been coerced from him and were therefore unreliable. And that happened in a trial system effectively designed by the Pentagon to ensure convictions.
Look at it this way: Of the 200 or so detainees left on Guantanamo who have not been cleared for release (pending the necessary arrangements), the Bush administration intended to try only some 70 or 80 before military commissions. That leaves more than 100 whom it considered too dangerous to release but was not planning to put on trial. "What lies in those files that's an obstacle to prosecution?" Waxman asks.
When Obama finds out, he may learn that his options for keeping them locked up are limited.