Closer to closing Gitmo

Closer to closing Gitmo

December 19th, 2009 in Opinion Times

Gitmo, as the detention center at Guantanamo Bay became widely known, operated from its inception as a lawless outpost of abuse that made fair trials unachievable, boosted recruiting for al Qaida, brought down the condemnation of the Supreme Court, and besmirched the reputation of the United States and our system of laws before the world. Its pending closure can't come too soon.

President Obama took a major stride toward that promised goal on Tuesday when he ordered the federal government to acquire an empty super-maximum prison, the Thomson Correctional Center in northwestern Illinois, to house about 100 suspected terrorists from the Gitmo base. The administration proposes to house the Gitmo detainees in a separate section of the prison -- an area to be operated by the Defense Department -- and to use the rest of the 1,600-bed facility to house high-security federal prisons and alleviate overcrowding in the federal prison system.

Illinois officials and local governments, communities and businesses near the prison are all for the plan. The state-of-the-art super-max prison has remained nearly empty since Illinois finished building it because other regions of the state resisted shutting down their older prisons and losing local jobs. But as soon as the administration announced the plan, Senate minority leader Mitch McConnell and his counterpart in the House predictably pounced on it.

Mr. McConnell claimed the administration had "failed to explain how transferring terrorists to Gitmo North will make Americans safer than keeping terrorists off our shores in the secure facility in Cuba." That's a good sound bite, but it's rather vacuous. It ignores several key Supreme Court and federal appeals court rulings that have rendered the Bush administration's plans for trials by military commissions at Gitmo unjust, unconstitutional and inoperable, and left the stain of the Gitmo's abuse still contagious.

It's not just the acknowledged history of severe physical abuse and, in many instances, outright torture at Gitmo that made so many evidentiary claims unusable. The Military Commissions Act that the Bush administration rammed through Congress in 2006 to authorize secret trials, using secret evidence and secret witnesses not revealed to the defendants, was also so flawed that the Republican dominated U.S. Supreme Court condemned it.

Gitmo's lawless operation has made it nearly impossible to adjudicate the cases of many detainees. Many others -- typically those who were randomly rounded up in various sweeps of combatants or suspected combatants -- were never charged with any crimes and left in detention in an uncertain legal limbo for years. A number of those have now been transferred to various foreign countries.

The Gitmo debacle prompted high officials under the Bush administration, including Gen. David Petraeus, former Secretary of State Colin Powell and Secretary of Defense Robert Gates, to advocate closure of Gitmo well before President Obama took office. Accordingly, one of his first promises was to close Gitmo by the end of this year.

The difficulty of clearing the cases of many detainees and finding a suitable facility elsewhere has slowed achievement of that promise. About 210 defendants still remain there. The Obama administration has transferred about 30 overseas, and hopes to transfer another 100 to other countries. That would leave less than 100 to transfer to the Illinois facility. About 40 would be tried in either military or federal courts, and the rest would remain in super-max cells under a new administrative category of "law of war" detainees, a group considered ineligible for trial but too dangerous to release.

That would fix the problem of closing Gitmo, but it would not end the legal limbo of detainees held without charges or convictions. That vexing dilemma may take years to resolve. But two things are certain: The administration has vowed not to release any of the detainees on American soil. And housing them in a secure and legitimate penal facility would allow the nation to extinguish the stain of Gitmo's abusive operation.

The hard question for Republicans and other members of Congress, who must approve the administration plan before it can proceed, is what other alternative is available for handling the remaining detainees that would survive another court challenge. It's pointless to condemn the Obama plan if they cannot offer a better alternative.