The news that the Obama Administration is planning to close the detention center at the Guantanamo Bay Naval Base is important mostly for its symbolic value. Gitmo and Abu Ghraib have become potent international symbols of American abuses of power and vital recruiting tools for our enemies. As reported in today's NY Times, however, the real question is not whether and when to close Gitmo but what to do with the current detainees. Happily, the Obama team is uninterested in a law authorizing indefinite detention within the U.S., as that would, as they recognize, simply create a "new Guantanamo someplace else." So, what to do with the detainees? Here are the options:
1) Some number will be sent to foreign countries for release or proceedings there. The Obama Administration should have some greater success than the Bush Administration did because it is not tainted by the detentions in the first place, and so receiving countries that would not have wanted to appear to be doing Bush's dirty work may be more willing to take detainees. However, this option is not a panacea. There are some prisoners who cannot be sent to any acceptable country. There are two limits on acceptability: a) We don't want to send people we think quite dangerous to countries that will simply release them or release them after a very short period; and b) We shouldn't send prisoners to countries where they will be tortured (although it's quite possible that anybody who could have been sent to such a country has already been sent there by the Bush administration).
2) Some number of detainees will be released on the ground that there is no longer any good reason to hold them, if there ever was. This procedure has already been used for some detainees--unilaterally by the Administration and as a result of the combatant status review tribunals.
3) The Obama Administration has also indicated that it plans to scrap the military commissions and, for some number of detainees against whom there exists admissible evidence of serious offenses, provide full-dress criminal trials in federal courts. Although I haven't seen discussion of the point, another possibility would be full-dress trials before courts-martial under the Uniform Code of Military Justice, which even Neal Katyal, arguing the Hamdan case, conceded, would be consistent with the Geneva Conventions.
Are the above options sufficient to "place" all of the current Gitmo detainees? I think so, but we might worry about a residual class of suspected "super-terrorists." Here are the necessary characteristics of the suspected super-terrorist that prevent him from falling into any of the above categories:
a) No acceptable country will take him;
b) We have good reason to think that he is very very dangerous and thus it would be a huge risk to release him;
c) Said "good reason" does not take the form of admissible evidence sufficient to prove guilt of a past life-sentence-worthy or capital crime beyond a reasonable doubt, either because
i) the evidence comes from illicit means such as torture but is (somehow) nonetheless reliable;
ii) presentation of the evidence would compromise a vital ongoing counter-terrorism program;
iii) the evidence is strong enough to warrant extreme concern (proof by a preponderance, say) but not so strong as to persuade a jury of guilt beyond a reasonable doubt;
iv) the evidence all relates to future plans of terrible destruction but not to a past crime;
v) some combination of i) through iv).
I have very serious doubts about the existence of any such super-terrorists. The most dangerous people who are at large---bin Laden (assuming he is alive) and al-Zawahiri--are both currently under indictment in the U.S. and al-Zawahiri has been sentenced (in absentia) to death in Egypt. There is little reason to doubt that capture and trial of either would result in a conviction and death sentence or life imprisonment. Indeed, there is a much larger question of whether either could get a fair trial than of whether the government could secure a conviction.
So if even bin Laden and al-Zawahiri don't count as falling into the category of people who couldn't be moved out of Gitmo, it's hard to figure out who would. Perhaps if A.Q. Khan were being held at Gitmo, if Pakistan would simply release him, and if all we had on him were a stated intent to proliferate nukes in the future, he would be the one prisoner who falls into this netherworld. But of course, Khan is free in Pakistan (having been pardoned), and there is simply no suggestion that any of the Gitmo detainees are nuclear masterminds with a global network of connections.
Bottom Line: Closing Gitmo will, as President-elect Obama recently said, take a bit of time to deal with the logistics, but there are no insuperable obstacles.
Posted by Mike Dorf