Nov. 11, 2008 – 1:40 p.m.
President-elect Barack Obama faces tough legal and political questions as his advisers seek to develop a new policy for handling detainees held at Guantánamo Bay, Cuba.
Obama has long said he intends to close the detention facility for suspected terrorists at the U.S. naval base at Guantánamo. But deciding where to send the 250 detainees currently housed there and how to adjudicate their cases will be tricky.
The first task for the new administration will be sifting through the records of each Guantánamo detainee to determine who might be released or repatriated to their home countries and who might stand trial.
Obama’s advisers are considering subjecting detainees to regular criminal trials in the United States, and perhaps asking Congress to establish a special new national security court to supplant the contentious system of military commissions Congress codified at Bush’s behest in 2006.
California Democrat Adam B. Schiff , a former federal prosecutor who serves on the House Judiciary Committee, said the congressional response “probably depends on whether the new president heads in the direction of trying to move detainees wholesale into the criminal court system, which I think would meet a lot of resistance from the right or wants to establish a wholly new secret court to adjudicate detentions which will have some resistance from the left.”
The new court would adjudicate some cases in which the government doesn’t have the evidence required to convict detainees of crimes in civilian courts.
But any decision to bring terrorism suspects to the United States to stand trial will spark a firestorm of political criticism from Republicans. Lawmakers in both parties are unlikely to favor seeing detainees imprisoned in their districts.
In addition, any legislative proposal to create a new court, which legal experts have been debating for years, is likely to face widespread opposition across the political spectrum. Conservatives favor retaining the existing military commissions while civil libertarians worry about creating another problematic new legal regime.
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