MARGARET WARNER: So why is closing Guantanamo proving so difficult? Here to explain further are Evan Perez, Justice Department correspondent for the Wall Street Journal, and Dafna Linzer, senior reporter for ProPublica, an independent nonprofit news Web site that features original and investigative reporting.
Welcome to you both.
Dr. Linzer, beginning with you, what has gone awry here with the president’s plan to close Guantanamo by next January?
DAFNA LINZER, ProPublica: I think there’s been a few things, and one is the concept of a plan that hasn’t just happened. It hasn’t been put forward at all, which was one of the things that members of Congress, both Democrats and Republicans, were so upset about in May when they cut off funding for moving any detainees onto U.S. soil.
I think another thing was that there was no one single person put in charge in an administration full of czars and special envoys. There wasn’t one leading figure to oversee all the different components of closing Guantanamo, overseeing what was going on in Congress, reporting on the progress of the task forces inside the Justice Department, and sort of holding it all together. And I think that those two things were problematic.
And then, of course, the deadline, which a lot of people in the administration believed, as we just heard Secretary Gates say, was a good idea and that it got people moving, but without that initial plan in place, a lot of the people inside the administration working on the issue were just kind of left looking at the clock and worrying about the time.
MARGARET WARNER: What would you add to that, Evan?
EVAN PEREZ, Wall Street Journal: Well, you know, the administration clearly made several miscalculations. The president knew that the former President Bush and even his opponent in the November election, John McCain, both said that they thought the prison should be closed, so they made the calculation that there wouldn’t be opposition necessarily for it.
And in addition, the president decided and the White House decided that they didn’t want to spend political capital on this. They had legislative priorities, including health care and energy and so on, that they wanted to dedicate to, and they didn’t want anything drawing attention away from those issues. So in the end, they decided not — to go quietly on this issue.
Not in my backyard
MARGARET WARNER: So you mean they didn't -- and did they fail to anticipate the opposition that would erupt on Capitol Hill?
EVAN PEREZ: It looks like they really miscalculated on how much there would be. For example, some people in Congress, some members of Congress who have raised the issue that terrorists could be coming to a neighborhood near you and, you know, if someone's, you know, walking around and sees a woman with a short sleeve shirt, maybe they might be, you know, be driven to violence. And so that's something that they didn't really calculate was going to happen.
MARGARET WARNER: And so, Dafna, how constrained is the administration right now? For instance, you heard Robert Gibbs say, well, they're still looking for a detention facility in the U.S. where they can move the prisoners that they've decided are too dangerous to be released or are awaiting trial. Can the administration do that without congressional approval, for example?
DAFNA LINZER: I think it's going to be tough. I mean, can they legally do it? Sure, they can legally move people. I think the question right now is, you know, politically, what can they do?
And they do have a problem. I think it's telling that Dianne Feinstein was so vocal on imagining that there could be some supermax facilities where these detainees could go, but I think Kit Bond was equally vocal. And I think the fact that so many Democrats joined with Republicans in preventing the administration from moving anybody onto U.S. soil means that really what the administration is up against is political opposition.
The legal impediments are not really there, but they definitely need congressional buy-in, and they need to start spending some time getting that.
MARGARET WARNER: Now, Evan Perez, the White House says that also -- one reason that the administration is having trouble deciding what to do with a lot of these detainees is that the records in the files were not in great shape, that this has proved much more difficult than they thought. Is that the case? And if so, why?
EVAN PEREZ: Well, you know, there were a lot of problems with the way the cases were put together. You have to remember, the Bush administration never contemplated putting most of these people on trial in criminal courts. And they had set up this system of military commissions and never envisioned that these people were going to come into criminal court.
So, you know, different standards. And certainly, if you're going to put them in a criminal court, you need a totally different set of facts, and you need to, you know, have the files in a certain way to be able to prepare for trial. And that wasn't done.
Military or federal court?
MARGARET WARNER: And, Dafna, so why is it proving -- is that why it's proving difficult -- or at least the administration hasn't so far decided whether even some of these, I think it's fair to say, known terrorists, like Khalid Sheikh Mohammed, they still have not decided whether to try them in a military court or a federal criminal court?
DAFNA LINZER: I think so. I agree with Evan. I think the issues of the files were the result of the fact that the previous administration, the Bush administration, wasn't planning on prosecuting anybody in a federal court.
You know, that said, the Obama administration went ahead with setting a deadline before looking at those files. And I think, in retrospect, there's been some soul searching and some thinking of, "Maybe we should have had a better sense of what those files looked like before setting the one-year deadline."
And, of course, as you say, they're now in a position where they've been going through these files for so many months and are still not sure even of those top four 9/11 conspirators where the best venue will be for charging them.
MARGARET WARNER: And finally, Evan, there's whole another category of prisoners that President Obama came forward in May and surprisingly -- at least to his base on the left -- said they might have to be detained indefinitely.
EVAN PEREZ: Right. And they had already been shopping this idea on Capitol Hill to some Republican members of Congress who they thought would be sympathetic to the view and also to some Democrats. And they found that the issue went nowhere, especially with the Democrats. And pretty soon...
Too dangerous to release
MARGARET WARNER: And the view was what, that these detainees are too dangerous to release?
EVAN PEREZ: They're too dangerous to release, and...
MARGARET WARNER: But you can't put on trial.
EVAN PEREZ: ... and they may never be put on trial, in some cases because, again, the evidence the way it was collected, there was some harsh interrogation methods used, so, you know, there's all kinds of reasons why some may not be able to be put on trial.
And some, even if you put them on trial -- and let's say they are not convicted -- the government might decide we still don't want to release them. We might be able to detain them indefinitely.
And so this plan was generated essentially to come up with a way, a new judicial system to be able to keep them indefinitely detained. And now the president says that we don't really need this new system, we have the authority already in the declaration that Congress made to authorize military force after the 9/11 attacks.
MARGARET WARNER: And so, Dafna, then going back now to some detainees who either the courts ordered released or the Obama administration in its own review ordered released, but they're afraid they'll be persecuted in their home countries, is the administration down to basically hoping that they can just persuade more other nations to take them?
DAFNA LINZER: Right. You see they have a lot of balls in the air for the next four months. You know, the diplomacy that they must now push forward, too, has proven tricky, just as all the other components of this process have proven to be.
Particularly is the case of 90 detainees from Yemen. The Obama administration has a point person just dealing with that issue, which is John Brennan who's Obama's counterterrorism adviser, just dealing with Saudi Arabia and Yemen on this issue.
And so it's very difficult for them to, A, try and find places for those they're willing to release to go to, places inside the United States to hold detainees they don't want to release at all, places and venues to prosecute people either through military commissions or in federal court. So in the last eight months, they've, I think, really been struggling, you know, trying very hard, clearly, from everyone we've spoken to inside the administration, but struggling with a lot of different avenues to try and resolve this issue.
MARGARET WARNER: So I guess Secretary Gates was understating when he said yesterday it's going to be tough. Dafna Linzer and Evan Perez, thank you so much.
EVAN PEREZ: Thank you.
DAFNA LINZER: Thank you.