Fordham Law


Obama’s Plan to Close Prison at Guantánamo May Take Year

Catherine Powell in New York Times, January 13, 2009

Media Source

By WILLIAM GLABERSON and HELENE COOPER

President-elect Barack Obama plans to issue an executive order on his first full day in office directing the closing of the Guantánamo Bay detention camp in Cuba, people briefed by Obama transition officials said Monday.

But experts say it is likely to take many months, perhaps as long as a year, to empty the prison that has drawn international criticism since it received its first prisoners seven years ago this week. One transition official said the new administration expected that it would take several months to transfer some of the remaining 248 prisoners to other countries, decide how to try suspects and deal with the many other legal challenges posed by closing the camp.

People who have discussed the issues with transition officials in recent weeks said it appeared that the broad outlines of plans for the detention camp were taking shape. They said transition officials appeared committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.

In addition, people who have conferred with transition officials said the incoming administration appeared to have rejected a proposal to seek a new law authorizing indefinite detention inside the United States. The Bush administration has insisted that such a measure is necessary to close the Guantánamo camp and bring some detainees to the United States.

Mr. Obama has repeatedly said he wants to close the camp. But in an interview on Sunday on ABC, he indicated that the process could take time, saying, “It is more difficult than I think a lot of people realize.” Closing it within the first 100 days of his administration, he said, would be “a challenge.”

The president-elect drew criticism from some human rights groups Monday who said his remarks suggested that closing Guantánamo was not among the new administration’s highest priorities. But even if the detention camp remains open for months, the decision to address Guantánamo on the day after his inauguration seemed intended to make a symbolic break with some of the most controversial policies of the Bush administration.

Several national security and legal analysts have argued in recent weeks that Mr. Obama is in a delicate political position after having committed himself to closing the prison. Sarah Mendelson, the author of a report for the Center for Strategic and International Studies on how to close the prison, said Mr. Obama’s remarks on Sunday appeared intended to indicate the difficulty of the task, which she said it could take a year to complete.

“I thought he was trying to manage expectations of how quickly those detainees who remain can be sorted into two categories: those who will be released and those who will be prosecuted,” Ms. Mendelson said.

Aside from analyzing intelligence and legal filings on each of the remaining detainees, diplomats and legal experts have said the new administration will need to begin an extensive new international effort to resettle as many as 150 or more of the remaining men. Portugal and other European countries have recently broken a long diplomatic standoff, saying they would work with the new administration and might accept some detainees who cannot be sent to their home countries because of concerns about their potential treatment.

The transition official, who asked for anonymity because he was not authorized to discuss the plans, said the administration expected to announce its Guantánamo plans next Wednesday.

Brooke Anderson, a transition spokeswoman, declined to comment on any plans, saying only, “President-elect Obama has repeatedly said that he believes that the legal framework at Guantánamo has failed to successfully and swiftly prosecute terrorists, and he shares the broad bipartisan belief that Guantánamo should be closed.”

In formulating their policy in recent weeks, Obama transition officials have consulted with a variety of authorities on legal and human rights and with military experts. Several of those experts said the officials had expressed great interest in alternatives to the military commission system, like trying detainees in federal courts, and appeared to have grown hostile to proposals like an indefinite detention law.

They also said the transition officials were intensely focused on new international efforts to transfer many of the detainees to other countries.

Several said the officials appeared concerned that a proposal for a new law authorizing indefinite detention would bring the new administration much of the criticism that has been directed at the Bush administration over Guantánamo. A former military official who was part of a series of briefings at the transition headquarters in Washington said the officials had spoken about the indefinite detention proposal as a way of creating a “new Guantanámo someplace else.”

“That is very much not the desire of the Obama team,” said the former military official, who insisted on anonymity because of his concerns about how the transition officials would react to public discussion of their comments.

Catherine Powell, an associate professor of law at Fordham, said transition officials appeared most interested at a meeting last month in showing international critics that they were returning to what they see as traditional American legal values.

“They are really looking for tools that we have in our existing system short of creating an indefinite detention system,” Ms. Powell said.

Mark P. Denbeaux, a Seton Hall law professor who has been a prominent lawyer for Guantánamo detainees, said that at a briefing he attended with senior officials of the transition last month the officials seemed to have decided to suspend the military commissions immediately.

“Their position is they’re a complete and utter failure,” Mr. Denbeaux said.

The Pentagon has been pressing ahead with plans to begin a trial on Jan. 26 of one of its high-profile suspects, a Canadian detainee named Omar Khadr. Mr. Khadr’s case has drawn wide attention, partly because he was 15 when he was first detained on charges of killing an American soldier in a firefight in Afghanistan in 2002.

Some human rights groups said Monday that they were alarmed by Mr. Obama’s vague timetable and lack of specifics in his remarks Sunday. They said they worried that the administration might yield to pressure to display its toughness in dealing with terrorism in its detention policies.

“The devil is in the details,” said Anthony D. Romero, the executive director of the American Civil Liberties Union, who has been pressing the new administration to publicly commit to immediately close Guantánamo.

Mr. Romero said he had grown concerned because transition officials had provided details of their plans for dealing with the economic crisis, but had yet to provide details for how they will close Guantánamo, which has brought worldwide criticism.

“Just like we need specifics on an economic recovery package,” Mr. Romero said, “we need specifics on a ‘justice recovery package.’ ”