President-elect Barack Obama has made clear that he will close the Guantanamo Bay detention center. Notwithstanding the news this morning that Khalid Sheik Mohammed and four others want to confess their guilt in the 9/11 plots, closing the Cuban detention center is easier said than done. Closing the facility, which currently holds 250 or so alleged terrorists, involves a raft of hard decisions and trade-offs that won't get any easier simply because the new president's name is not Bush. The following is a checklist of the major questions President Obama will face, in rough sequential order, before he can shutter the camp:
Who must be released?Nobody contends that all of the current detainees at Guantanamo require continued incarceration. The Bush administration has already cleared approximately 60 of them for release or transfer to other countries. The Obama administration could assume some additional risk by letting others go. The first step in closing Guantanamo, then, will be to decide how many people truly must be held and how many must be held in American, rather than foreign, custody.
Where to release detainees? Where to send some of the releasable detainees poses an intractable problem. The Obama administration is legally barred from sending them to home countries that will torture or persecute them. The administration cannot easily set them free inside the United States, for some have terrorist backgrounds or connections, and the mere taint of having been called "enemy combatants" by the U.S. military will make them unwelcome. And the administration will have a tricky time convincing rights-protecting countries to resettle people deemed too dangerous to release here. The new president will thus need to figure out which detainees might be admitted to the United States and then leverage his substantial international prestige to persuade other countries to accept the rest. Ironically, the more willing he is to free detainees, the more difficult this problem will become.
Where should the remaining detainees be held? The new administration will presumably have to hold the remaining suspected terrorists in facilities in the United States. But where? They will likely end up in a prison on a military base, since it would be unsafe to hold them in normal prison populations. But few states will want to house Khalid Sheik Mohammed and his friends. And members of Congress will give NIMBY-ism a whole new meaning when it comes to keeping them out of their districts. If resettling nondangerous detainees will take careful diplomatic work abroad, resettling the dangerous ones in prisons domestically will require careful work with Congress at home.
How many of the remaining detainees can face trial? Continued detention over the long term for the remaining detainees will prove more palatable to domestic and international public opinion and the federal courts if detainees face criminal charges. But how many detainees have committed crimes provable in court using evidence judges will admit? It is critical both to identify publicly the group of detainees against whom prosecutors intend to bring charges and to bring those charges expeditiously.
What form of trial should be used? How many detainees can face trial will depend to some degree on which trial system the new administration ultimately deploys. There are three possibilities: ordinary civilian trials, military commission trials, and courts martial under revised rules of the Uniform Code of Military Justice. Each system has pros and cons.
Civilian trials of terrorists are the most legitimate. But they also can endanger civilian juries and judges, they have demanding procedural and evidentiary rules that make convictions difficult, and the pro-government precedents likely to emerge from terrorist trials will hurt ordinary criminal defendants. Military commissions have more flexible rules that theoretically make acquittals less likely. But they are now politically damaged and have in any event doled out some short sentences. The UCMJ could be modified to operate like military commissions and likely would be more legitimate in practice. But the Constitution's double jeopardy clause may prevent detainees already tried in military commissions from being retried in a UCMJ trial.
A further complication in assessing these options is that the more demanding the trial system chosen (for example, civilian trials instead of military commissions), the harder it will be to convict, which means fewer detainees tried and more held indefinitely by other means.