President Obama's pledge to close the U.S. prison camp at Guantanamo Bay, Cuba, by the end of his first year in office navigated one roadblock last week, when Congress agreed to allow the transfer of prisoners onto U.S. soil to face trial.
But the struggle over where to try the remaining 221 prisoners — and what to do with them if convicted — is by no means over.
While the Justice Department works to meet a Nov. 16 deadline to present a plan for prosecuting prisoners, the national debate continues over how to administer justice to non-American prisoners whose allegiances may — or may not — lie with a terrorist ideology.
The Struggle To Define Justice
Just what constitutes justice at Guantanamo? It's a question that has dogged the prison camp, which once held more than 500 detainees, throughout its troubled eight-year history. The Bush administration instituted a military tribunal system there, but the Supreme Court declared it unconstitutional in 2006.
"It's not just that Guantanamo has been seen as a blight on the United States," says Sarah Mendelson of the Center for Strategic and International Studies. "[It's] that the new legal system that was put together there was seen as disreputable — no matter how many bells and whistles you put on it."
Mendelson is among those who argue that as many prisoners as possible should face criminal prosecutions in federal court — although she acknowledges there are cases the military has some jurisdiction over.
"We have a criminal justice system that is nimble, quite adaptable and able to handle complex national security cases," Mendelson says. "Americans need to be reminded: There were three convictions in Guantanamo with military commissions."
"We have 195 international terrorists who have been convicted through our courts," she says.
The Case Against Military Commissions
The military commissions system, critics argue, is too flawed and carries too much negative baggage to be used to try prisoners — even with changes proposed by the Obama administration and approved Wednesday by Congress as part of the National Defense Authorization Act.
The changes include new limits on hearsay evidence and statements gained through "cruel, inhumane and degrading treatment" and offer improved access to counsel for defendants.
Those changed, while welcome, don't go far enough, says Joanne Mariner of Human Rights Watch.
"The new law can't salvage these discredited commissions," Mariner, the organization's director of terrorism and counterterrorism, said in a statement.
The rewritten rules approved by Congress, she says, would allow the prosecution of offenses not considered violations of the laws of war, including "providing material support for terrorism," she says. The revisions, she says, do not exempt children from prosecution and contain no limit on how long commissions can be used.
But the president-appointed Detention Policy Task Force has asserted that with the changes made to the commission system, it is a legitimate element of the U.S. justice system.
The Case Against Using U.S. Courts
During a May 21 speech, Obama said that the remaining Guantanamo prisoners will fall into five categories: those who can be released on court order or transferred to another country; those who will be tried as criminals in federal court; those who will be tried through military commissions for violating the laws of war; and those who can't be prosecuted but constitute a "clear danger" to Americans.
Justice Department lawyers are now nearing a decision over who will be tried in open federal court, who will face military commissions, and who may be indefinitely incarcerated.
Those following the department's deliberations say that up to 30 prisoners may be tried in federal courts — and that number could include the five high-profile men suspected of conspiring to attack America on Sept. 11, 2001.
About 75 to 80 prisoners are expected to be released by court order or transferred to another country.
The greatest mystery surrounds the remaining prisoners, who would face either a military commission or prolonged detention without charge.
Richard Samp of the Washington Legal Foundation said he sees difficulties in making the toughest terrorism cases in federal court --and not because those cases could undermine national security and intelligence-gathering methods.
"Many people have suggested that there are problems with being able to maintain national security, but there are ways to conduct criminal trials that will protect that," Samp says. "That's not my principal concern."
Instead, he says he sees an inherent difficulty in making a federal criminal case without being able to introduce hearsay evidence, banned in U.S. courts. What could prove crucial to making a case, he says, are accounts gathered from residents or witnesses in the theater of war — witnesses whom prosecutors very well may not be able to produce to testify.
"Federal courts provide the same constitutional rights to nonresident aliens already determined to be enemy combatants," he says. "The rules that apply in federal court are not appropriate."
He and others argue that military commissions would allow more latitude on what the rules for evidence should be.
Clock Is Ticking
As Obama's self-imposed Jan. 22 deadline to close Guantanamo nears, the president faces continued criticism over his plan to hold some prisoners indefinitely — and uncertainty over where to incarcerate convicted terrorists.
Though Congress has expressed its opposition to having convicted terrorists serve their sentences in the U.S., many experts see that as a political problem that can be overcome — and they predict that the convicted will most likely end up in high-security supermax prisons stateside.
Meanwhile, the U.S. Supreme Court has put further pressure on the administration.
Last year, the court restored to Guantanamo prisoners the habeas corpus right to seek a review of evidence against them.
Last week, the court agreed to hear an appeal from 14 Chinese Muslims who claim they have been wrongly imprisoned at Guantanamo. The justices, who are expected to hear the case next spring, could end up giving federal judges the right to order the release of prisoners wrongly held.
The road out of Guantanamo remains long and contentious, whether Obama meets his January deadline — or not.
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