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No Signs of Phaseout for Guantanamo

Farah Stockman

WASHINGTON -- The Bush administration has transferred three suspected terrorists to the Guantanamo Bay prison since March, despite recent legal setbacks and President Bush's statement that he would like to close the controversial facility.

The three detainees are the first to arrive in Guantanamo Bay since 2004, with the exception of those who were abruptly transferred last fall when Bush closed secret CIA prisons in Europe after their existence became known. Two of the recent transfers were captured in a sweeping counterterrorism operation in Somalia. The third is Iraqi.

The lack of new arrivals -- and the large number of detainees who were being sent home -- had led many human rights advocates to believe the Guantanamo Bay prison was being phased out amid widespread international outrage.

But now, new detainees are arriving and the flow of releases has slowed significantly -- from 102 last year to 15 this year.

"It's like Guantanamo is getting its second wind, and becoming a permanent option," said Joanne Mariner , director of the Terrorism and Counterterrorism Program at Human Rights Watch, a New York-based human rights organization.

Some legal advocates for detainees expressed concern that the prison is being used for detainees from the Somali operation.

"Rather than closing Guantanamo, they are using it for the next phase, in another front in the war on terror," said Jonathan Hafetz , a lawyer at the Brennan Center for Justice, a New York-based law institute that focuses on justice and democracy. "It shows that the administration still believes Guantanamo is a viable way to hold people indefinitely without due process."

Commander Jeffrey Gordon, a Defense Department spokesman, said that despite the international outrage directed at Guantanamo Bay, the prison remains the administration's best option for holding terrorism suspects.

"While we have long maintained that we would like to close Guantanamo, there are a number of highly dangerous men who -- if released -- would pose a grave threat to the international public," Gordon said.

Last week, the Department of Defense announced the transfer of Abdullahi Sudi Arale , a suspected member of Al Qaeda's network in East Africa and a leader in the Council of Islamic Courts, a political movement believed to be linked to Al Qaeda.

In March, the Pentagon transferred Abdul Malik , who allegedly admitted to involvement in the 2002 attack on a hotel in Kenya that killed 13 and injured 80.

In April, the Pentagon announced the transfer of Abd al- Hadi al-Iraqi , one of "Al Qaeda's highest-ranking and experienced senior operatives." Iraqi is accused of directing cross-border attacks on coalition forces in Afghanistan, and of directing plots to assassinate President Pervez Musharraf of Pakistan . US military documents say Iraqi was attempting to return to Iraq.

Gordon did not dispute the idea that hundreds of detainees would be kept in Guantanamo Bay for the foreseeable future, without the option of trial or release.

He said 80 detainees have been determined to be eligible for release to their home countries and 80 more have been identified as candidates for prosecution. But the remaining 220 will stay indefinitely at Guantanamo Bay.


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"They are going to continue to undergo annual administrative review boards to see if there is something new in their status, if they want to decide to cooperate with authorities, with the system in place," Gordon said. "The reason they are there is because they are so dangerous or they refuse to talk."

Legal rights advocates say that the three new detainees should have been sent to federal court, where they could be tried and convicted, like the perpetrators of the 1998 Al Qaeda embassy bombings in Kenya and Tanzania.

"The federal court system is ready and willing to deal with terrorism cases," said John Sifton, another Human Rights Watch researcher. "The federal justice system has broken the back of terrorists since the 1860s."

Gordon acknowledged that the government does not have enough evidence to try the bulk of detainees in a federal court system, yet maintained that releasing them would be foolhardy.

"We don't have battlefield detectives out there finding fingerprints on AK-47s," he said, referring to the type of evidence that would be needed for trials. "It would be difficult to secure prosecutions against the majority of them, but they are dangerous enough that we don't want them to become the next hijacking crew."

David Rivkin , a Washington lawyer who has served in previous Republican administrations, agrees.

"The notion that you can successfully process most individuals in federal district court is utterly implausible," Rivkin said. He said the rules of evidence in US federal court are so strict that they would exclude much of what could be collected in war zones abroad.

Yet federal courts have begun to handle cases coming from the recent counter terrorism operations in Somalia.

Daniel Maldonado , 28, a Boston native who traveled to Somalia in 2006 to join the Islamic Court movement, pleaded guilty in a federal court in Houston to receiving training from a foreign terrorist organization. Maldonado was arrested at the Kenyan border in January and interrogated by FBI officials in Africa.

Hafetz represented the family members of another American, Amir Mashal , arrested by Kenyan authorities with Maldonado.

Mashal, an American of Egyptian descent who says he went to Somalia for religious training, was arrested on the Kenya-Somalia border with scores of others. He was then sent to Somalia for about a week and later to a secret prison in Ethiopia, Hafetz said .

Eventually, US officials released Mashal and let him return home to New Jersey. He has never been charged with a crime.

"They didn't have a case against him," Hafetz said. "But if this guy was not an American citizen, he could have been sent to Guantanamo for years."

Farah Stockman can be reached at

© Copyright 2007 The Boston Globe

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