WASHINGTON: President-elect Barack Obama’s advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require the creation of a controversial new system of justice.
During his campaign, Obama described Guantanamo as a “sad chapter in American history” and has said generally that the US legal system is equipped to handle the detainees.
But he has offered few details on what he planned to do once the facility is closed.
Under plans being put together in Obama’s camp, some detainees would be released and many others would be prosecuted in US criminal courts.
A third group of detainees — the ones whose cases are most entangled in highly classified information — might have to go before a new court designed specially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. Advisers participating directly in the planning spoke on condition of anonymity because the plans are not final.
The move would be a sharp deviation from the Bush administration, which established military tribunals to prosecute detainees at the American base in Cuba and strongly opposed bringing prisoners to the United States.
Obama’s Republican challenger, John McCain, had also pledged to close Guantanamo. But McCain opposed criminal trials, saying the Bush administration’s tribunals should continue on US soil.
The plan being developed by Obama’s team has been championed by legal scholars from both political parties.
But it is almost certain to face opposition from Republicans, who oppose bringing terrorism suspects to the US, and from Democrats, who oppose creating a new court system with fewer rights for detainees.
Laurence Tribe, a Harvard law professor and Obama legal adviser, said discussions about plans for Guantanamo had been “theoretical” before the election but would quickly become very focused because closing the prison is a top priority. Bringing the detainees to the United States will be controversial, he said, but could be accomplished. “I think the answer is going to be, they can be as securely guarded on US soil as anywhere else,” Tribe said. “We can’t put people in a dungeon forever without processing whether they deserve to be there.”
The tougher challenge will be allaying fears by Democrats who believe the Bush administration’s military commissions were a farce and dislike the idea of giving detainees anything less than the full constitutional rights normally enjoyed by everyone on US soil.
“There would be concern about establishing a completely new system,” said Rep. Adam Schiff of California, a member of the House Judiciary Committee and former federal prosecutor who is aware of the discussions in the Obama camp. “And in the sense that establishing a regimen of detention that includes American citizens and foreign nationals that takes place on US soil and departs from the criminal justice system — trying to establish that would be very difficult.”
Obama has said the civilian and military court-martial systems provide “a framework for dealing with the terrorists.”
