Obama Could Solve The Gitmo Closure Problem; Try Suspects In Civilian Court, Or Release

Charlie Savage's story
about difficulties with closing Guantanamo is depressing, especially in
describing how the issue has become fodder for political fights in
Congress.

Rebuffed this month by skeptical
lawmakers when it sought finances to buy a prison in rural Illinois,
the Obama administration is struggling to come up with the money to
replace the Guantanamo Bay prison.

As a result, officials now believe that they are unlikely to close
the prison at Guantanamo Bay, Cuba, and transfer its population of
terrorism suspects until 2011 at the earliest -- a far slower timeline
for achieving one of President Obama's signature national security
policies than they had previously hinted [...]

But in interviews this week, officials estimated that it could take
8 to 10 months to install new fencing, towers, cameras and other
security upgrades before any transfers take place. Such construction
cannot begin until the federal government buys the prison from the
State of Illinois.

The federal Bureau of Prisons does not have enough money to pay
Illinois for the center, which would cost about $150 million. Several
weeks ago, the White House approached the House Appropriations
Committee and floated the idea of adding about $200 million for the
project to the military spending bill for the 2010 fiscal year,
according to administration and Congressional officials.

But Democratic leaders refused to include the politically charged
measure in the legislation. When lawmakers approved the bill on Dec.
19, it contained no financing for Thomson.

White House officials say it could be months before they get the
appropriations for Thomson, and only then would the conversion process
begin.

However, there is another way, as my colleague Spencer Ackerman
explains. The primary objective of the Thomson facility is to house
detainees who cannot be tried in civilian courts or released to their
home countries. The only thing the Administration has confirmed is that
they would be used to house military commissions
and the prisoners who await trial under them. So the answer, as
Ackerman puts it, would be to either try detainees in criminal courts
or release them, and not use the third category of military commissions
(or, for that matter, the other potential category of indefinite
detention, which does violence to American values and violates
Constitutional protections and international conventions).

David Kris and Jeh Johnson, the senior
Justice and Pentagon officials responsible for the contours of the
Obama administration's detainee policies, haven't provided a clear set of criteria for who gets charged in civilian courts and who gets charged in the commissions.
And they've had, at this point, a year to review the Guantanamo cases!
Johnson told a Senate panel in July, "Where feasible, we would seek to
prosecute detainees in [federal civilian] courts."

Well, that just got a whole lot more feasible with the Thomson Snag,
didn't it? The federal government's difficulties in purchasing Thomson
are only problematic if you're a fan of the military commissions. If
you prefer trying detainees in federal courts or sending them to the
custody of their home countries, then this isn't problematic at all.
And my colleague Daphne Eviatar documented just yesterday all the persistent and structural problems with the military commissions.

Bottom line: this is an opportunity for civil libertarians to
relitigate their case with the administration that tinkering around the
edges of a baroque and neither-fish-nor-fowl justice system is a
mistake, and one that carries needless and substantial political risk
for the administration.

Justice officials are actually making progress in returning detainees who will not be charged with a crime. The return of 6 detainees to Yemen,
if successful, could lead to almost half of the 200-odd prisoners
remaining at Guantanamo, all Yemenis, and many not considered "high
value" suspects, being released. You could try the rest in civilian
courts or release them. Problem solved. And the federal Treasury saves
$200 million in the process.

This line of reasoning only makes sense, of course, if you think
Thomson will only be used as a new staging ground for military
commissions, and not a Gitmo North for indefinite detentions.