The detention center at Guantanamo Bay and the flawed justice system created to try terrorist suspects held there are among the most complicated legacies of the Bush administration. They're Obama's problem now. The president elect has said he will shutter Gitmo and put some of the detainees on trial in American criminal courts or military courts martial (his campaign did not return calls seeking comment.) But the prisoner mess created by Bush with the stroke of a pen in November 2001, and made messier over seven years, will take time and resourcefulness to clean up. Here are four reasons the controversial facility will probably still be open for business a year from now.
The Yemeni Factor. Any route to closing Guantanamo involves repatriating most of the roughly 250 detainees still held in Cuba. Sending detainees home requires negotiating the terms of their release with the home country. Since Yemenis make up the largest group of prisoners in Cuba, talks with the government in Sanaa will be key. But Yemen has been the hardest country to engage on the issue, according to a former senior official familiar with the process. The Bush administration has asked home countries to impose restrictions on the returnees. Saudi Arabia, for example, has imprisoned some Gitmo veterans, limited the travel of others and put those it thought it could co-opt through a "de-radicalization" program. "Yemen doesn't want to be seen as doing anything for the United States," says the former official, who declined to be named discussing sensitive diplomacy. Even if it agreed to U.S. demands, Yemen might not have the capability to honor them. "It has areas of the country that are poorly governed and its borders are porous," said the former official. If the new administration is willing to release detainees without demands on the home country, the process can go quickly. But the risk is that some might pose future security threats to America.
Other detainees face possible torture if sent home—most notably Gitmo's 17 Uighurs from China. Ken Gude of the Center for American Progress, a liberal think tank headed by former Clinton White House aide (and Obama ally) John Podesta, has suggested the United States. ask its allies to help create an international resettlement program for those detainees who can't return to their countries. The goodwill Obama has already generated in Europe and elsewhere will help. But the process will take time.
The NIMBY(Not In My Back Yard) Problem: The United States will continue holding a few dozen suspects it intends to put on trial or deems too dangerous to release. But where? A secret study conducted by the Pentagon in 2006 outlined alternative sites within the U.S., including the military facility at Fort Leavenworth, Kan., and at Charleston, S.C., according to a former Pentagon official familiar with the details. But congressmen representing those and other districts with military brigs have already vowed to fight the move. "What you have is a NIMBY problem," says Charles Stimson, who served until last year as the Deputy Assistant Defense Secretary for Detainee Affairs. "I haven't seen one congressman raise his hand and say, 'give them to me'." Even if Capitol Hill could be persuaded to go along with the relocation, Stimson said, extensive work would have to be done on existing military brigs before Guantanamo detainees are housed there. "You can't commingle them with military detainees, so you'd have to set up a separate wing or clear out the facility," he says. The structures would have to be reinforced so they wouldn't be vulnerable to terrorist attacks. "And you would have to address secondary and tertiary [security] concerns within the town, the county and the state."
Miranda This: Once moved, the high-value detainees already indicted for their role in the attacks of 9/11 or other crimes would presumably be tried in either federal criminal courts or in military courts—a suggestion put forth by Obama in a statement earlier this year. But it's not at all clear that convictions could be won against even top Al Qaeda suspects like the alleged 9/11 mastermind Khaled Sheikh Mohammed. Federal and military courts are much more protective of a defendant's rights than the military commissions operating at Guantanamo. In a federal court, an Al Qaeda defendant held for years at a secret CIA site could complain that his right to a speedy trial was violated, that he was never read his Miranda rights, that the evidence against him did not go through a proper chain of custody and that confessions were gleaned through coercive interrogations, according to retired Col. Morris Davis, the former chief prosecutor in the Guantanamo trials. "Any one of these issues could jeopardize the prospect of a conviction," he said. Some legal scholars, like Neal Katyal at Georgetown University, have suggested creating new "national security courts", where suspects would have more rights than they do in military commissions but would not get the full range of criminal protections. The idea is controversial in the legal community, but might be the only viable alternative to the discredited Gitmo commissions. Establishing the new courts would require a lengthy legislative process.
We'll Always Have Bagram? Obama will also have to think through where the U.S. can put detainees it captures in the future. The detention center at Bagram air base in Afghanistan is currently being expanded. But Bagram shares Guantanamo's dark record of abuse, secrecy, and detention without trial. Human rights groups describe it as Gitmo with a different zip code. To really change course, the new administration will have to formulate a new policy for holding terrorist suspects that allows them some form of quick and fair adjudication. "In my mind, Guantanamo is a symptom of a larger problem," says Matthew Waxman, a law professor at Columbia University who has held senior positions in the State Department and the Pentagon. "We're going to continue capturing and detaining Al Qaeda members. We need a durable system for handling them." Ideas abound. Choosing one and building a new structure around it will require strong leadership—and time.