ARI SHAPIRO, Host:
Another longstanding legal issue involving the military is the fate of the U.S. detention center at Guantanamo Bay, Cuba. President-elect Barack Obama has said many times that he wants to shut it down. As NPR's Jackie Northam reports, closing the base could be complicated.
JACKIE NORTHAM: During the heady days of the presidential campaign, Senator Obama spoke with easy assurance about his plans for Guantanamo Bay and the handling of terror suspects.
SHAPIRO: Guantanamo, that's easy. Close down Guantanamo. Restore habeas corpus. Say no to renditions.
NORTHAM: Now that he's President-elect Obama, he's been more careful about saying just how he's going to close Guantanamo, says Scott Silliman, a law professor at Duke University.
SHAPIRO: I think he has referred to it as closing it when it is prudently the time to do it. So he's not signaling that it's going to be closed on the 21st of January. And very clearly, an awful lot of work has to be done.
NORTHAM: Specifically, what to do with the roughly 250 prisoners still being held at Guantanamo. Nearly 60 are no longer considered a threat and are slated for release, but they've been waiting for months. The problem is neither their home country nor a third country wants to take them. Vincent Warren with the Center for Constitutional Rights believes that could change because he says there will be more international goodwill towards a new administration.
NORTHAM: There is a sense, a very strong sense, that under an Obama administration that countries would be much more willing to engage this issue than they had been in the Bush administration.
NORTHAM: For many, Guantanamo has become a powerful symbol of injustice, primarily because of the open-ended detentions. Only 19 prisoners have been charged with crimes, and only two full military tribunals have been completed. The tribunals were created solely for the Guantanamo detainees and have been plagued by problems and legal challenges. There's widespread support for trying the detainees in U.S. federal courts, but Duke University's Silliman recalls the trial of terror suspect Zacarias Moussaoui, which descended into a circus-like atmosphere at times.
SHAPIRO: We've already been witness to the Moussaoui case and how long and how complicated that trial was. So you could do it. I'm not sure that the federal courts are the best option.
NORTHAM: Silliman says there would be problems with classified information in a federal court. He says it would be better to employ the same system that's used to try U.S. military service personnel, with a few tweaks. Glenn Sulmasy, a law professor at Harvard and a national security expert, says there's another option.
SHAPIRO: It would seem logical that we should at least be considering hybrid courts or national security courts from, sort of, a different type of a court but that would be a mixture of military law and our traditional civilian law.
NORTHAM: This type of court would require legislation. If Guantanamo is closed, another issue is where do you hold the detainees who are convicted or cannot be repatriated? One option is a military base such as Fort Leavenworth in Kansas. Matt Waxman, a professor at Columbia Law School and who served at the Pentagon overseeing detainee policies, says that might be a hard sell.
SHAPIRO: I think there's going to be widespread political support for shutting Guantanamo down, but I don't think you'll see a lot of Congress members volunteering their home district as the site for al-Qaeda detentions.
NORTHAM: Another idea is to send the detainees to Bagram Air Base in Afghanistan where the Pentagon recently acquired another 40 acres of land to build a new $60 million prison for detainees already held there. But Waxman says you'd just be transferring the problems of Guantanamo to Bagram. Waxman says a new administration must address a fundamental issue.
NORTHAM: To what legal process are terrorist suspects entitled if they're going to be detained long term? And you can close Guantanamo. But if you don't confront that question, you haven't really solved the Guantanamo problem.
NORTHAM: There are calls for Senator Obama to create a bipartisan commission to study the problem of Guantanamo. Jackie Northam, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
