After Gitmo?

The worst-kept secret in official Washington is that the facility for wartime detainees at Guantanamo will soon be shut down. Too much controversy has dogged “Gitmo” and the 275-or-so captured terrorists now housed there. Although Colin Powell, for example, will not get his wish that the Guanatanamo prison be closed “this afternoon,” the closure is sure to come and sooner rather than later.

Swell. The purpose here is not to debate the virtues or detriments of “Gitmo.” But one has to wonder what will happen to the detainees if the facility goes. Do they join Zacarias Moussaoui, convicted of conspiring to kill Americans on 9/11, in the U.S. prison system (Moussaoui is now serving a life sentence at the Federal ADX Supermax prison in Florence, Colorado)? Will there be an attempt to repatriate them to their countries of origin — many of whom are delighted the thugs are going and do not want them back?

At the gaggle (early morning briefing) for White House reporters yesterday, I posed this question to Press Secretary Tony Snow. Has anyone, particularly in light of the Moussaoui business, ever done a feasibility study or at least pondered what would happen if Guantanamo were closed and its prisoners put in the traditional U.S. prison system, I asked.

“I don’t know about a feasibility study,” replied Snow, “I mean, we’ve discussed the issue before here at the podium, which is this is something that is problematic.

“It’s our preference to have all these cases taken care of as rapidly as possible, and in as many cases as possible, to have them repatriated to home countries, provided that there is a guarantee that their human rights and civil rights will be defended. I mean, that’s an issue that’s been ventilated a number of times.”

Translated: Snow wasn’t going anywhere near there. No sooner did the President’s top spokesman finish dealing with my question than he moved on to Helen Thomas, his arch-antagonist in the press room.

Were Guantanamo closed, no matter who was satisfied in public life or the press, a plethora of fresh problems would surely and inarguably mushroom.

The best and most-desired option in the event of the closing would be the relocation of the prisoners back to the place they were initially detained. The bulk would go back to Afghanistan, and a handful to other countries. Since January 2002, when the detention facility opened, about 380 detainees have left Guantanamo for other countries — among them Albania, Afghanistan, the United Kingdom, Iran, and Iraq. Last December, for example, the United States transferred 18 detainees — seven to Afghanistan, six to Yemen (one of whom was released), three to Kazakhstan, one to Libya and one to Bangladesh (People’s Daily Online, December 18, 2006).

But, the issue of relocation becomes complex and problematic when one has to deal with those captured in other places away from a site of battle (say, an undercover agent plotting terror on U.S. soil) or when one has to deal with countries that do not want the repatriated terrorists. Saudi Arabia, which has resisted repatriation for five years until ’06 (when the U.S. transferred sixteen Guantanamo detainees to the Saudis), comes immediately to mind.

The other option is to turn the detainees into the U.S. court system a la Moussoui. Two veteran journalists who have watched the issue carefully for years voiced to me the difficulties in this avenue.

“Once they come into the U.S. court system, you’ve got to deal with habeas corpus, appeals, and the trial lawyers getting into the act,” noted Rick Tompkins of United Press International, “These cases will drag on and on for years.”

Warren Richey of the Christian Science Monitor echoed these sentiment. As he put it, “Bringing Guantanamo detainees into the U.S. would enable the detainees to raise a host of legal issues and trigger a new explosion of detainee litigation. This might be good for the detainees and their legal counsel — and those of us who write about the law — but not for an Administration that is trying to fight a war and keep the detainee issue as quiet as possible.

Richey went on to raise the specter of the Moussoui case, warning that “if detainees were brought into the U.S. and placed on trial in the federal court system, the resulting legal battles would mirror those experienced in the Moussaoui trial and would probably be much more contentious and difficult. Imagine Al-Qaeda suspects demanding the presence of fellow Al-Qaeda members to testify on their behalf. Once on the stand –if ever permitted –defense counsel would ask whether they had ever made any statements to U.S. officials. Then they would ask under what conditions those statements were made. Not exactly an episode of Matlock.”

“I suspect the White House would prefer to avoid the issue [of what happens if Guantanamo is closed] if it can,” concluded Richey. So far, he’s right.