RedGage

The Obama Administration may have made a decision over the weekend on how to deal with closing Guantanamo Bay prison before Jan 22, 2010, the date set by an order signed by President Obama. The administration is considering the unprecedented creation of a courtroom-within-a-prison complex in the U.S. for terror suspects

This complex would combine military and civilian detention facilities at a single maximum-security prison and provide a location for 229 detainees now jailed at Guantanamo.

The White House is framing this decision as “the best among a series of bad options.” This option, according to the AP , would involve:

_Moving all the Guantanamo detainees to a single U.S. prison. The Justice Department has identified between 60 and 80 who could be prosecuted, either in military or federal criminal courts. The Pentagon would oversee the detainees who would face trial in military tribunals. The Bureau of Prisons, an arm of the Justice Department, would manage defendants in federal courts.

_Building a court facility within the prison site where military or criminal defendants would be tried. Doing so would create a single venue for almost all the criminal defendants, ending the need to transport them elsewhere in the U.S. for trial.

_Providing long-term holding cells for a small but still undetermined number of detainees who will not face trial because intelligence and counterterror officials conclude they are too dangerous to risk being freed.

_Building immigration detention cells for detainees ordered released by courts but still behind bars because countries are unwilling to take them

Furthermore, AP explains:

As many as an estimated 170 of the detainees now at Guantanamo are unlikely to be prosecuted. Some are being held indefinitely because government officials do not want to take the chance of seeing them acquitted in a trial. The rest are considered candidates for release, but the U.S. cannot find foreign countries willing to take them. Almost all have yet to be charged with crimes.

The Obama Administration seems to be going ahead with the establishment of permanent system for indefinite detention. This actually isn’t too surprising especially since the administration shows no signs of ending the "war on terror" anytime soon.

Matthew Rothschild of The Progressive reported in July that the Pentagon had “expanded the prospects of indefinite detention to include those who actually have already been prosecuted and have even been found not guilty.” The decision to have a detainee indefinitely detained would be made based on whether that detainee posed a “future threat” or not.

Rothschild explained that this was creating policy to unlawfully detain prisoners. 

In the last week of June, the administration drafted an executive order that would allow indefinite detention and bypass Congress . Heavy debate was occurring as Obama and civil liberties worried what politically the best decision would be.

Back in May, during a speech Obama divided the detainees into five categories and suggested how each category would be dealt with. Obama explained how one of the categories would be indefinitely detained . 

Jonathan Turley, a George Washington University law professor who frequently appears on MSNBC, responded : 

Obama broke the detainees into five categories. He is to be commended for deciding to send some detainees to federal court for a true and legitimate trial. However, he still refused to take the rule of law to its full conclusion. With one category, he isolated to “detainees at Guantanamo who cannot be prosecuted, yet who pose a clear danger to the American people.” He promised “[w]e are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people.” Of course, this would mean holding people in violation of domestic and international law — precisely what George Bush did. It is part of the Administration’s effort to appear principled by doing an unprincipled thing. The reason that we cannot try these individuals is because they would win. The solution, according to both Bush and Obama, is not to give them a trial.

Most recently, a judge ordered the release of Mohammed Jawad , a boy who was most likely captured in Afghanistan in 2003 when he was twelve. A federal judge and military judge have found the case that Jawad is guilty inadequate especially since Jawad has been threatened, beaten, and tortured while in detention. 

In July of 2008, this courtroom-within-a-prison complex idea was part of the recommendation of a Center for American Progress report titled, "How to Close Gitmo ." It recommended this five phase plan.

Phase One: Immediately change the dynamic at Guantánamo by announcing a hard 18-month timetable to close the prison, and for the remainder of its existence, making it as transparent as possible. These are meaningful actions that signal real change from the Bush administration, yet allow appropriate time to work through all the challenges of getting the Guantánamo population down to zero.

Phase Two: Bring a small number of detainees into the United States to stand trial in regular federal or military courts. Scrapping the flawed Military Commissions and rejecting any effort to establish National Security Courts in favor of established U.S. courts will get trials moving faster and is a major step to restore confidence in the legitimacy of America’s actions.

Phase Three: Create a resettlement and rehabilitation program in partnership with allied countries and international organizations to find homes for detainees that can’t be returned to their home countries and to smooth the re-integration of detainees into society. This program should be based on similar programs currently used by the U.S. military in Iraq and the Saudi Arabian government to assist in the transition of militants from detention to release.

Phase Four: After U.S. courts demonstrate their effectiveness and legitimacy, transfer those remaining detainees selected to stand trial into the United States. These detainees should be held at either the U.S. Penitentiary Administrative Maximum Facility, also known as the “Supermax,” at Florence, Colorado, or at the U.S. Military Detention Barracks at Ft. Leavenworth, Kansas , depending on whether they are slated for trial in federal or military courts.

Phase Five: Some detainees will remain at Guantánamo who are not candidates for trial, but who were captured during military operations in Afghanistan and may represent a threat to coalition forces still fighting in that country if they are released. Transfer this group back to Afghanistan and hold them in a NATO-controlled detention program along with prisoners captured by coalition forces during ongoing military operations.

This program can reduce the population of Guantánamo to zero within 18 months, but problems could arise in one or more of the steps, and the next administration should be prepared for the only two choices available for any remaining detainees: create a preventive detention regime and hold them indefinitely in the United States, or release them. [emphasis added]

I think this report has played a huge role in Obama's decision-making process up to this point.  John Podesta, the CEO of the Center for American Progress, was in charge of Obama's transition team . 

Obama is straddling the middle, as he often does, seeking to reconcile pro-torture, pro-war on terror, super Homeland Security industrial complex advocates with civil liberties lawyers and progressives and concerned Americans troubled by how the U.S. has circumvented the rule of law and how military and intelligence agencies have brutalized detainees at Gitmo.

Obama refuses to confront the fact that few of the detainees at Gitmo are guilty or that few even have played a role opposing the U.S. in the “war on terror.” He refuses to educate a public who have learned to accept lawlessness as a necessity so they can be safe and secure (indeed, a Pew Research poll found 54% of white non-Hispanic Catholics, white evangelicals, and white mainline Protestants polled thought torture could be “justified.” )

Couple the administration’s refusal to oppose policies of indefinite detention with the administration’s blocking and hindering of investigations of war crimes and one could argue this administration has as much contempt for the rule of law as Bush had.