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With Changing Administrations, Future for Guantanamo Detainees Is Uncertain

November 25, 2008 at 6:45 PM EDT
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With Osama Bin Laden's former driver transferred to Yemen and other inmates ordered released last week, Guantanamo Bay's prison population is decreasing as President-elect Barack Obama prepares to take office. Two lawyers assess what's next for the facility.
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JEFFREY BROWN: Salim Hamdan is reportedly en route from the Guantanamo Bay prison to his homeland of Yemen. Hamdan is only one of two Guantanamo detainees to be convicted by U.S. military tribunal, and another 250 remain in prison.

Two weeks ago, President-elect Obama reaffirmed his campaign promise to shut down the Guantanamo prison, but did not spell out what would happen to the detainees. Only 21 have been formally charged, including Khalid Sheikh Mohammed, the alleged mastermind of 9/11.

Other detainees include a group of 17 Chinese Muslims and 100 Yemenis captured in Afghanistan or the Middle East and moved to Guantanamo.

To take up the question of what next for Guantanamo and its detainees, we go to Neal Katyal, an attorney for Hamdan and a professor at Georgetown University Law School, and Charles Stimson, the former deputy assistant defense secretary for detainee affairs. He’s now a senior legal fellow at the Heritage Foundation.

Welcome to both of you.

What is the significance of your client being sent back to Yemen?

NEAL KATYAL, Georgetown University: Well, it’s premature for me to say, of course. I don’t even have confirmation that he has landed or he’s even en route to Yemen.

JEFFREY BROWN: You don’t have confirmation?

NEAL KATYAL: No, I just have the same press reports that you do. So it’s premature at this point to say.

But I do think that, if he lands in Yemen and if he is released at the end of his sentence, that it will be a significant step forward in the ending of Guantanamo as we know it.

JEFFREY BROWN: Do you see significance there?

CHARLES STIMSON, Heritage Foundation: I see some significance and no significance. It certainly closes a chapter with respect to Mr. Hamdan himself.

And I’ve been encouraging the administration for some time now to make a broader policy announcement that they should allow detainees to go home once they’ve served their criminal sentence.

But I think Neal is probably right…

JEFFREY BROWN: In this case, he didn’t quite reach the end of his sentence.

CHARLES STIMSON: I think he has a month to go. And it’s my understanding from press reports that he would serve out the remainder of his sentence in Yemen and then be free to move about.

But Neal’s right. I mean, this is yet another brick falling, signifying the beginning of the end of the detention facility at Gitmo.

Will Obama keep his promise?

Charles Stimson
Heritage Foundation
I take the president-elect at his word. I think he will announce the closure of Guantanamo very early on. He will announce the ending of military commissions.

JEFFREY BROWN: Well, President-elect Obama, as we said, has said he will shut it down. Should he stick to the promise? And can he? What are the issues there?

NEAL KATYAL: Right. He should absolutely stick to the promise. I mean, Secretary of State Condoleezza Rice, the defense secretary, Robert Gates, have both said that Guantanamo is now a net national security loss for the United States. So there's a security reason to do it above and beyond the simple humanitarian one.

Now, there are a lot of issues involved in how you do it. And I think to do it effectively, he should announce right away that that's his intent, to close it as fast as he possibly can, as safely as he can, on day one.

He should end the system of military commissions, these military trials, these almost fake trials that have been occurring at Guantanamo, in which I think have been a blot on the United States.

And then he should think about the diplomatic piece and their review of the case files to see who can be prosecuted at Guantanamo and when.

And that all can't happen overnight. It's going to take some time; it's got to be done thoroughly and carefully.

JEFFREY BROWN: Do you think that it's -- we'll come back to some of these. Do you think, first, though, that it's an issue of how rather than whether to close it at this point?

CHARLES STIMSON: I do. I take the president-elect at his word. I think he will announce the closure of Guantanamo very early on. He will announce the ending of military commissions.

I am encouraged by his recognition and his statements during the campaign that some should be tried criminally for crimes they've committed and others should be, as he said, held in a manner consistent with the laws of war.

That is a long-held tradition. The Supreme Court has certainly recognized the ability of a country to detain the enemy during wartime.

But this process, as Neal correctly states, will take some time. It will be months, not weeks, for the proper and safe closure of Gitmo.

Challenges to closing Gitmo

Neal Katyal
Georgetown University
[We] will see...greater numbers of people being repatriated to their home countries...because Guantanamo was really a kind of short-term solution to a long-term problem.

JEFFREY BROWN: All right, well, let's explore some of the issues. Can most of these people be tried in the -- handed over to the criminal justice system?

NEAL KATYAL: I do believe that most of them can. But before even reaching that step, there's a diplomatic piece that has to happen first.

I mean, President Bush has tried to repatriate people out of Guantanamo to their home countries and not met too much success, perhaps because the United States doesn't have the same relationships as it used to historically. I think...

JEFFREY BROWN: Excuse me, too much success, in the sense that they will not accept them or on the terms that we want?

NEAL KATYAL: Both. And so I think that, when President Obama comes in, he comes in with a certain amount of goodwill as a new administration and one which is a break with the past.

And so we will see, I think, greater numbers of people being repatriated to their home countries, and that's, I think, a just and wise result, because Guantanamo was really a kind of short-term solution to a long-term problem.

JEFFREY BROWN: All right, let me stop you there, before we come back to the criminal justice system. And what about that subject? What is the state of play that you see on negotiations with countries that we might send these people back to?

CHARLES STIMSON: There are four main challenges to closing Gitmo properly, "LLPD": legal, logistics, political, and diplomatic. And the one Neal is talking about is the diplomatic piece.

More than 500 people have left Gitmo; there's only 250 or so left. So empirically more have left than are there now.

But there may be an Obama effect, in that other countries might be more willing to accept the remaining few hard cases, especially if the United States decided to parole appropriate detainees into the United States. That may grease the skids or break the logjam for those countries to step up and continue to cooperate and, indeed, take some detainees.

JEFFREY BROWN: And with the stipulations that we want for sending them back, since that they would not be tortured where they're sent back or not be released right away to fight us, fight again?

CHARLES STIMSON: Yes. Well, I mean, we have an obligation under international law not to send anybody to any country where it's more likely than not that they'd be tortured. The convention against torture clearly states that. We have assiduously tried to follow that rule. It's tough, though.

Securing the return of detainees

Neal Katyal
Georgetown University
[T]he first thing that happens, I think, is a launch review of the case files to see who can be prosecuted and where.

JEFFREY BROWN: All right, so come back to the question of how many and how you would send people into the justice system and be treated as in the criminal justice system?

NEAL KATYAL: So the first thing we do is send a number of people back to other countries. And what that involves is not just sending them back, but also making sure the system there is safe.

So we want to have Yemen, for example. Right now, they have -- we have about 100 Yemeni detainees. And we need to make sure that, as we send those people back, we're sending them into a secure environment. So we need to fund a safe and secure Yemen for their return.

Then, with those people that we can't send back, we want to prosecute them. And I think the president will probably -- I would imagine would task his prosecutors and his Defense Department to look at those cases and see, who can we prosecute and where?

And the two main choices should be our Article III or federal civilian courts and our existing system of military justice, our proud court martial system. And both of those are tooled up and ready to handle the vast majority of these cases.

And so the first thing that happens, I think, is a launch review of the case files to see who can be prosecuted and where. And only then do we entertain any sort of notions, I think, for national security corridor, other things like that.

JEFFREY BROWN: Are there going to be people, though, who don't fit in to any of those categories?

CHARLES STIMSON: Could be. I've been a military prosecutor and a federal prosecutor. You really don't know whether the cases can be tried in either of those two fora, and those are appropriate fora to try some detainees, potentially.

You don't know whether you're able to prosecute them in those until you've rolled up your sleeves and looked at the actual evidence and considered the national security considerations and the discovery one would, you know, routinely turn over to the defense counsel.

So I agree with Neal that those are things the administration will need to look at. It's aspirational at this point for those of us who haven't looked into the actual evidence to say we can do it. I hope we can. I think we can. I haven't acted as a prosecutor in those cases, and no one at this table has, either.

JEFFREY BROWN: What's your level of optimism about being able to deal with those cases?

NEAL KATYAL: I think that what Cully says is precisely right. No one can say for sure, and that's precisely why you need to have that process and review of the files take place.

But I've worked with the great prosecutors in our military, in our civilian system. They're very good at dealing with terrorism cases. They're very good with dealing with national security concerns and the like.

And I think the great tragedy over the last eight years is that the Bush administration never even gave our existing military justice system a chance, never used it to prosecute anyone.

JEFFREY BROWN: All right, we'll watch for the next step. Charles Stimson, Neal Katyal, thank you both.

CHARLES STIMSON: Thank you.

NEAL KATYAL: Thank you.