MATT APUZZO and LARA JAKES JORDAN- Associated Press Writers - 11/10/2008 5:10:00 AM
WASHINGTON- Barak 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 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 U.S. 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 U.S. 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 especially 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 aren't final.
The move would be a sharp deviation from the Bush administration, which
established military tribunals to prosecute detainees at the Navy base
in Cuba and strongly opposes 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 U.S. 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 U.S. 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
U.S. 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 U.S. soil.
"There would be concern about establishing a completely new system,"
said Rep. Adam Schiff, D-Calif., 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 U.S. 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," and Tribe said the
administration would look to those venues before creating a new legal
system. But discussions of what a new system would look like have
already started.
"It would have to be some sort of hybrid that involves military
commissions that actually administer justice rather than just serve as
kangaroo courts," Tribe said. "It will have to both be and appear to be
fundamentally fair in light of the circumstances. I think people are
going to give an Obama administration the benefit of the doubt in that
regard."
Though a hybrid court may be unpopular, other advisers and Democrats
involved in the Guantanamo Bay discussions say Obama has few other
options.
Prosecuting all detainees in federal courts raises a host of problems.
Evidence gathered through military interrogation or from intelligence
sources might be thrown out. Defendants would have the right to
confront witnesses, meaning undercover CIA officers or terrorist
turncoats might have to take the stand, jeopardizing their cover and
revealing classified intelligence tactics.
In theory, Obama could try to transplant the Bush administration's
military commission system from Guantanamo Bay to a U.S. prison. But
Tribe said, and other advisers agreed, that was "a nonstarter." With
lax evidence rules and intense secrecy, the military commissions have
been criticized by human rights groups, defense attorneys and even some
military prosecutors who quit the process in protest.
"I don't think we need to completely reinvent the wheel, but we need a
better tribunal process that is more transparent," Schiff said.
That means something different would need to be done if detainees
couldn't be released or prosecuted in traditional courts. Exactly what
that something would look like remains unclear.
According to three advisers participating in the process, Obama is
expected to propose a new court system, appointing a committee to
decide how such a court would operate. Some detainees likely would be
returned to the countries where they were first captured for further
detention or rehabilitation. The rest could probably be prosecuted in
U.S. criminal courts, one adviser said. All spoke on condition of
anonymity to discuss the ongoing talks, which have been private.
Whatever form it takes, Tribe said he expects Obama to move quickly.
"In reality and symbolically, the idea that we have people in legal
black holes is an extremely serious black mark," Tribe said. "It has to
be dealt with."