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U.S. Officials Scramble To Revamp Detainee Policies

In his first week in office, President Obama issued an executive order directing that the U.S. prison camp at Guantanamo Bay, Cuba, be closed within a year. Although that order received the lion's share of media attention, it was just one of three related directives that the president issued on the same day.

The other two orders carry much shorter timelines, and government officials are scrambling to finish the work.

The federal government now has three related task forces studying the best way for the Obama administration to handle terrorism suspects.


Obama gave one team 180 days to devise a plan for where and how to detain suspected terrorists. The second team, which is also operating under a six-month deadline, will make recommendations on interrogation and transfer policies. The third team is responsible for closing Guantanamo by Jan. 22, 2010.

All three task forces bring together officials from different parts of the federal government: Justice, Defense, State, Homeland Security, the CIA and the White House.

With the 180-day countdown clock ticking, the detention and interrogation policy teams are already operating with certain handicaps. Some key players, such as David Kris in the Justice Department's National Security Division, were not confirmed for their jobs until recently. Other important advisers have not been confirmed yet at all.

Senate Republicans are threatening a filibuster for Dawn Johnsen, the nominee to lead the Justice Department's Office of Legal Counsel. Congress has not even held a hearing yet for Harold Koh, who has been nominated as legal adviser to the State Department. If they had already been confirmed, those officials would likely be major players in one or more of the task forces.

Shifting Legal Landscape


The detention team has the added challenge of chasing a moving target. American courts have produced a steady drip of rulings on how the administration is allowed to handle terrorism detainees.

On Thursday, for example, a federal judge in Washington, D.C., ruled for the first time that some detainees in Afghanistan are entitled to the same rights as detainees at Guantanamo Bay. The opinion leaves unclear how many of the detainees at Bagram Air Base have habeas corpus rights.

Of the four detainees who brought the case, Judge John Bates said three can challenge their detention. The fourth, an Afghan citizen, cannot. This new development makes it more complicated for the Obama administration to send foreign detainees to Afghanistan, which could well become a major factor in the detention task force's deliberations. The legal landscape may change yet again if the Obama administration appeals the ruling and a higher court overturns it.

The detention task force faces equally complicated legal issues at home. In February, the administration indicted Ali al-Marri, the last enemy combatant who had been held in the United States without charge. But the administration has not disavowed the authority to detain enemy combatants in the United States altogether.

In fact, Attorney General Eric Holder told a group of reporters last month that he believes the United States is part of the battlefield in the war against terrorism. "The battlefield is really the entire world," Holder said. That suggests Holder has not ruled out using military detention to hold people captured in the United States.

Civil liberties groups object to applying a war paradigm to the U.S., saying it opens the door to detaining Americans indefinitely without charge. To add to the ambiguity, the Supreme Court has not yet weighed in on whether people can be detained as enemy combatants in the United States.

Where To Put Detainees?

The interrogation and transfer task force faces its own obstacles. For example, three federal judges on the D.C. Circuit appeals court are currently deciding whether detainees have a right to challenge their transfer to other countries. The interrogation and transfer task force is trying to decide on a policy for transferring detainees without knowing which way the court will rule.

Transferring detainees to the United States presents another set of problems. The administration has had a difficult time trying to bring a group of 17 Chinese Muslim Uighurs to this country, even though the men are not considered dangerous and have long been cleared for release.

The obstacles are even greater for detainees who are considered dangerous. The detention facility in Leavenworth, Kan., has been suggested as one place the men could go.

But at Attorney General Holder's confirmation hearing, Kansas Sen. Sam Brownback told Holder in no uncertain terms, "Fort Leavenworth does not want these detainees. If I could put it any clearer to you, I would."

The Hardest Cases

The Guantanamo Bay Task force has about 240 unique challenges: That's the number of men being held at the prison camp. The task force must find a place to send each of the men at the prison camp.

One detainee has already been released to Great Britain. Another has been cleared for release, but the administration is still looking for a place to send him.

Several administration officials have said they believe the detainees will fall into three groups: One group consists of men who can be released. A second consists of men who can be tried in criminal courts.

The third consists of the most difficult cases — men who the administration believes to be dangerous but cannot be tried or released for various reasons.

Some outside observers have suggested that Congress could create a specialized system of national security courts to try the most difficult terrorism suspects, but the administration has so far remained mum on the issue.

This is one of many places where the three task forces intersect. In deciding what to do with the most difficult group of Guantanamo detainees, the Obama administration needs to address its policies for detention, interrogation and transfer. The six-month timeline for the interrogation and detention task forces is almost half over.

Fortunately for the members of the team, the executive orders establishing the deadlines contain a loophole. Each order says the task force will finish its work in 180 days, "unless the chair determines that an extension is necessary."

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