Obama to sign order shutting Gitmo in a year

[thedrifter]

Obama to sign order shutting Gitmo in a year
By Lara Jakes and David Espo - The Associated Press
Posted : Wednesday Jan 21, 2009 19:35:02 EST

WASHINGTON — President Barack Obama plans to sign an executive order Thursday to close the Guantanamo Bay detention center within a year and halt military trials of terror suspects held there, a senior administration official said.

The executive order was one of three expected imminently on how to interrogate and prosecute al-Qaida, Taliban or other foreign fighters believed to threaten the United States.

The official said the president would sign the order Thursday, fulfilling his campaign promise to shut down a facility that critics around the world say violates domestic and international detainee rights. The aide spoke on condition of anonymity because the event has not yet been announced.

An estimated 245 men are being held at the U.S. naval base in Cuba, and 600 others at Bagram Air Base in Afghanistan. Most have been detained for years without being charged with a crime. The administration already has received permission to suspend the trials at Guantanamo for 120 days pending a review of the military tribunals.

A copy of a draft of the order, obtained Wednesday by the AP, dealt only with the Guantanamo prison.

“In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantanamo and closure of the facility would further the national security and foreign policy interests of the United States and the interests of justice,” the draft order said.

At least three military prisons — at Fort Leavenworth, Kan., Camp Pendleton, Calif., and Charleston, S.C. — could house some of the Guantanamo detainees, an administration official said. Also under consideration, the official said, is the Supermax prison in Florence, Colo., which houses convicted 9/11 conspirator Zacarias Moussaoui and Olympic bomber Eric Rudolph.

A senior Obama administration official said Wednesday that 60 to 120 Guantanamo prisoners may be considered low-threat detainees and transferred to other countries, either for rehabilitation or release. Only Portugal so far has agreed to take some of those detainees, this official said, although diplomatic discussions are ongoing. The official spoke on condition of anonymity because the executive orders have not been issued yet. A State Department spokesman did not immediately know which nations had been asked to accept some prisoners.

Other detainees could be imprisoned in their home nations. And the rest likely will be transferred to prisons in the United States — a plan that many members of Congress oppose.

Public interest and human rights groups that long have wanted the facility shuttered were quick to urge Obama to be more aggressive than the draft order’s proposals.

The Center for Constitutional Rights, which provides many of the Guantanamo detainees with legal representation, said the draft doesn’t give specific steps for closing the facility.

“It only took days to put these men in Guantanamo. It shouldn’t take a year to get them out,” said Vincent Warren, the center’s executive director.

The draft requires a review of each Guantanamo case to decide whether the detainees should be returned to their home countries, released, transferred elsewhere or sent to another U.S. prison.

House Republican leader John Boehner said he’s open to options, “but most local communities around America don’t want dangerous terrorists imported into their neighborhoods, and I can’t blame them.”

“The key question is where do you put these terrorists,” Boehner said Wednesday. “Do you bring them inside our borders? Do you release them back into the battlefield? If there is a better solution, we’re open to hearing it.”

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., has long contended the U.S. can handle relocating the detainees “just as it has handled the worst criminals and other terrorists before,” spokesman David Carle said.

It’s also unclear how the detainees would be prosecuted.

At the request of the White House, Defense Secretary Robert Gates on Tuesday night ordered military trials at Guantanamo to be frozen for 120 days during an Obama administration review. Military judges on Wednesday agreed to halt the cases of five men charged in the Sept. 11, 2001, attacks, along with the case of a Canadian accused of killing an American soldier in Afghanistan.

“The president has clearly made his intentions well known,” Pentagon spokesman Bryan Whitman said Wednesday. “And he has taken the first steps with respect to his direction to order a pause to military commission proceedings.”

The second administration official said the 120-day suspension could be extended indefinitely if the review concludes that current military trial system, devised by advisers to former President George W. Bush, should end.

If that happens, the cases likely will be heard by federal courts under long-standing military or civilian criminal law.

It’s also possible the Obama administration could call for a new national security court system — a hybrid of the two — although the official described that as “a last resort.”

John D. Altenburg Jr., a retired Army general who oversaw the military commissions until November 2006, says Guantanamo should stay open and the tribunals should continue.

Trying detainees in federal courts is problematic, he says, because the evidence was collected “on a battlefield” and may be inadmissible outside the commissions, although “it doesn’t mean the evidence is tainted.”

Two more executive orders are expected in coming days, according to two Obama officials. Those will deal with what methods will be allowed to interrogate terror suspects.

One official said the first interrogation order will require all U.S. personnel to follow the U.S. Army Field Manual while questioning detainees. The manual explicitly prohibits threats, coercion, physical abuse and waterboarding, a technique that creates the sensation of drowning and has been termed a form of torture by critics.

At the same time, the second order will demand a study of interrogation methods that could be added to the Army manual. It was unknown Wednesday what those methods could include, but officials have said they would be more aggressive than what is currently allowed.

———

Associated Press writers Jennifer Loven and Richard Lardner contributed to this report.

Ellie

[thedrifter]

Hamilton County: Plan to close Gitmo draws mixed reviews


By:
Monica Mercer (Contact)
Thursday, January 22, 2009

By:
Monica Mercer (Contact)


The man who said he helped plan the attacks on Sept. 11, 2001, expressed dismay Wednesday at President Barack Obama’s request to halt war crimes trials at Guantanamo Bay, according to the Chattanooga military lawyer defending him.

“(Khalid Sheikh Mohammed) opposed the (government’s) motion because he wants to ‘move forward’ with his case rather than ‘move backward’ as he seeks an early martyrdom,” Army Lt. Col. Mike Acuff, a former Hamilton County public defender, said in an e-mail from Guantanamo Bay.

Yet many, including Lt. Col. Acuff, have long argued that the special prosecution rules at Guantanamo Bay, which were made legal by Congress in 2006 with the passage of the Military Commissions Act, have caused the country to move away from the Constitution’s guarantee of fair and impartial trials for accused criminals.

“This country has gone wrong where we have put people in jail, changed the rules and haven’t given them a quick and fair opportunity to hear their cases,” Lt. Col. Acuff recently told the Times Free Press in an exclusive interview.

Mr. Obama’s request Wednesday seemed to justify that argument, a move in step with his pledge to close Guantanamo Bay, a U.S. facility on the Cuban coast guarded by American Marines. Military judges quickly agreed Wednesday to a 120-day suspension of the case against Mr. Mohammed and his four codefendants, the Associated Press reported.

In Washington, the new administration circulated a draft executive order that calls for closing Guantanamo Bay, known in military circles as Gitmo, within a year and reviewing the cases of all the nearly 245 inmates still detained there. The government would release some, transfer others and put the rest such as Mr. Mohammed on trial, possibly in U.S. federal court.

Jeffrey Addicott, a retired military lawyer and director of the Center for Terrorism Law at St. Mary’s University School of Law in San Antonio, said closing Gitmo is a “mistake” that could leave Americans reeling from the unintended consequences.

“My prediction is that a lot of these (suspected terrorists) will not be charged with the most serious crimes, and many of them are going to go free” if they are transferred to federal court, Mr. Addicott said.

Part of the problem, he noted, is that some evidence gained under the military commissions rules against prisoners such as Mr. Mohammed wouldn’t stand in other legal venues.

Criticisms have been leveled against tactics used in the military commissions, including the “enhanced interrogation techniques,” a euphemism for what some call torture. Detainees also have been held without the right to a “speedy trial,” the rule in the federal courts system.

And evidence gathered through “hearsay testimony” is allowed in the military commissions, despite being illegal in the trials of prisoners on U.S. soil.

Former U.S. Deputy Attorney General Paul McNulty, however, successfully prosecuted suspected 9/11 terrorist Zacarias Moussaoui in 2006 in U.S. federal court, not in the military commissions at Gitmo.

Former U.S. attorney and current U.S. District Judge Harry S. “Sandy” Mattice Jr. of Chattanooga said he had discussions with Mr. McNulty about that trial, but would only say that “there were a lot of obstacles and challenges (Mr. McNulty) faced in carrying out that prosecution.”

Local defense attorney and former army officer Barry Abbott praised Mr. Obama’s decision, calling Gitmo a “legal quagmire” that no longer has credibility.

“From a fundamental rights perspective, the minute we do not give people basic humans rights as a society is the minute that we deny our own democratic values,” Mr. Abbott said.

The Associated Press contributed to this report.

Ellie

[thedrifter]

REVIEW & OUTLOOK
JANUARY 22, 2009

Obama and Guantanamo
Fighting terrorism is simpler when you're a candidate.


Campaign promises are so much easier to adhere to when they're strictly hypothetical, as Barack Obama is discovering. The then-President-elect said 10 days ago on ABC that while he still plans to close Guantanamo, "it is more difficult than I think a lot of people realize" and that "many" of the enemy combatants are "very dangerous."

Merely for gesturing at this reality, Mr. Obama suffered the blunt-force trauma of his left-wing allies, and the panicked transition leaked new details on the Administration's intentions last week. On Tuesday the Pentagon halted military commissions at Guantanamo for 120 days, and reports as we went to press yesterday said Mr. Obama would sign an executive order today that the base be closed within a year. This was after he told the Washington Post that closure might take even longer. Isn't responsibility fun?

The first practical question is where to transfer Khalid Sheikh Mohammed and the 245 or so other remaining Gitmo prisoners. Dangerous enemy combatants can't simply be released into the streets. The Obama camp says that after reviewing the classified files, it will try to repatriate as many as safely possible. But 60 already cleared for release remain because they may be persecuted by their home countries. And even Mr. Obama's vaunted diplomacy is unlikely to convince rights-protecting countries to resettle people he believes are too dangerous to release in the U.S. -- and the more willing Mr. Obama is to release prisoners, the more difficult this problem will become.

One suggestion is moving the remaining prisoners to Kansas's Fort Leavenworth, but state politicians are already sounding a red alert. The military base is integrated into the community and, lacking Guantanamo's isolation and defense capacities, would instantly become a potential terror target. Expect similar protests from other states that are involuntarily entered in this sweepstakes.

In any event, this option merely relocates Guantanamo to American soil under another name. The core challenge is not a matter of geography but ensuring a stable legal framework for detaining and punishing fighters engaged in unconventional warfare against the U.S.

In the Military Commissions Act of 2006, the Bush Administration and Congress painstakingly set thresholds for who can be detained and under what rules. Mr. Obama argues that work was flawed and that the trials should not continue in their present form. But he also said in his ABC sitdown that he wants to create "a process that adheres to rule of law, habeas corpus, basic principles of Anglo-American legal system, but doing it in a way that doesn't result in releasing people who are intent on blowing us up."

Sounds great. But this "balance" is difficult to strike because many of the Guantanamo prisoners haven't committed crimes per se but are dedicated American enemies and too dangerous to let go. Other cases involve evidence that is insufficient for trial but still sufficient to determine that release is an unacceptable security risk.

The stock anti-antiterror position is that detainees should be charged with crimes, either through military courts-martial or (preferably) the ordinary criminal justice system. Anyone who can't be indicted should be set free. But such trials are unworkable even for the 70 or 80 detainees that prosecutors had planned to try with military commissions, let alone prisoners who are too dangerous to release but for which there isn't sufficient evidence for a tribunal, much less civilian courts. Critics like to point to aggressive interrogations as somehow tainting these cases, but the real problems are far more prosaic. For instance, any evidence probably can't be admitted in civilian courts because terrorists aren't read their Miranda rights when picked up in combat zones.

An alternative to military commissions that is gaining political traction is the idea of a national security court, composed of Article III judges to supervise detentions and administer trials. There are real risks here. Politically, it will cost time and capital that Mr. Obama probably prefers to spend elsewhere. Practically, any new system is likely to face the same legal challenges from the white-shoe lawyers at Shearman and Sterling and anti-antiterror activists that for years tied down military commissions.

But legal experts across the political spectrum including Harvard's Jack Goldsmith, the Brookings Institution's Ben Wittes and Georgetown's Neal Katyal advance this option as a way to restore "credibility" to the detainee process. The national security court would operate under rules of evidence and classification that would allow the military to avoid compromising intelligence sources and methods, as well as admit intelligence gathered under battlefield conditions.

Then again, such rules would be almost identical to those now used in . . . George Bush's military commissions. On wiretaps, interrogations and now Gitmo, the new Administration is discovering that the left-wing attack lines against Bush policies are mostly simplistic illusions. Now those critics are Mr. Obama's problem.

Ellie