Barack Obama was unequivocal: "I have said repeatedly that I intend to close Guantanamo," he told "60 Minutes" in his first extensive postelection interview, "and I will follow through on that."
Knowing first-hand what it means to be locked up - though only for three months and mercifully not as an enemy combatant with my legal and human rights ignored - I could only welcome that pledge. But "closing Gitmo" and "ending torture," his second commitment, are bumper stickers. A headlong rush to shut the facility, without carefully contemplating the consequences, could cause just as many legal problems as, and far more security problems than, its establishment in the first place. How specifically should Obama implement these commitments in his effort to "regain America's moral stature" at home and abroad?
Obama's true challenge is, first of all, figuring out what to do with the roughly 250 detainees still being held at Guantanamo Bay. Some can and will be released and sent home to their home countries or other countries that will take them. Some will still be tried in military or civilian courts, as the administration is also planning to do in its remaining days. A federal judge ruled yesterday that five of six Algerian prisoners who have been detained since 2001 are not being lawfully held and must be released, another sharp rebuke to the President's detention policy.
But what about those detainees who the government argues cannot safely be released but cannot be tried without endangering intelligence sources and methods? They cause a far more daunting challenge. So does the creation of a detention and trial system for current and future terrorism suspects that balances the protection of their rights and our legal and moral traditions on one hand, and the need to safeguard our security on the other.
This challenge, it turns out, is fraught with risk, and the legal and human rights communities are deeply split about what to do. Some experts, like Andrew McCarthy, the former federal prosecutor of high profile terrorism cases, take a hard-line view. He wants Guantanamo prisoners and future suspects whom the government thinks cannot safely be released to be transferred and held indefinitely if necessary after judicial review in secure prisons inside the U.S. or in Bagram, Afghanistan, or elsewhere. Those who can be brought to trial should be tried before military or civilian courts.
On the other side are such human rights advocates as Deborah Colson, of Human Rights First, and Ken Gude, of the liberal Center for American Progress, who argue that our civilian system of detention and justice as currently constituted is robust enough to handle current and future terrorism cases. A Human Rights First study issued in June argues that more than 100 terrorism cases have been prosecuted in federal courts with a 91% conviction rate - as opposed to a total of three cases under the Gitmo military commission system created by the Bush administration and Congress after the Supreme Court ruled that even foreign-born detainees have a right to challenge their detention.
Moreover, the report argues, the Classified Information Procedures Act enacted in 1980 has procedures for safeguarding the introduction of classified information in court.
Between these poles is a middle ground favored by such experts as Benjamin Wittes, Jack Goldsmith, of Harvard, and Neal Katyal, of Georgetown University. They urge that a national security court system be established that would adhere to the Constitution, but not necessarily to criminal law. Its goal would be to safeguard sensitive intelligence that cannot be presented in an open courtroom or provided to defendants or their lawyers without jeopardizing its source and perhaps shutting down the international cooperation that produced the intelligence. Such courts could also bless preventive detention of such suspects under a new law, a highly controversial proposal even among Bush administration critics. But they argue that such a national security court would guarantee greater judicial review than does the current military commission system, which almost no one likes.
Obama would be wise to study all of these proposals - but adopt none of them quickly. He should form a blue-ribbon panel to try to hammer out a consensus on the wisest, least risky course of action given the vital legal, political and national security issues at stake. He should also explain whatever he decides to the American people and outline the risks of the policy he has chosen.
"The cases of each detainee should be carefully scrubbed to see who can safely be released, who needs to be closely monitored if released, and who can stand trial before a military or civilian court," counsels Matthew Waxman, a law professor at Columbia University who helped reform detention policy at the Pentagon after the abuses of Abu Ghraib. Waxman, too, counsels caution. For Presidents, like doctors, should first and foremost do no harm.
Original Source: http://www.nydailynews.com/opinions/2008/11/21/2008-11-21_close_gitmo_with_great_care_barack_obama.html