- The Washington Times - Tuesday, November 11, 2008

President-elect Barack Obama’s advisers are crafting plans to close the Guantanamo Bay prison and prosecute terrorism suspects in the U.S., a plan that the Bush administration said Monday was easier said than done.

Under the plan being crafted inside Mr. Obama’s camp, some detainees would be released and others would be charged in U.S. courts, where they would receive constitutional rights and open trials. But, underscoring the difficult decisions Mr. Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require the creation of a new legal system to handle the classified information inherent in some of the most sensitive cases.

Many of the estimated 250 Guantanamo detainees are cleared for release, but the Bush administration has not able been to find a country willing to take them.

Advisers participating directly in the planning spoke on the condition of anonymity because the plans aren’t final.

The plan being developed by Mr. Obama’s team has been championed by legal scholars from both political parties. But as details surfaced Monday, it drew criticism from Democrats who oppose creating a new legal system and from Republicans who oppose bringing terrorism suspects to the U.S. mainland.

The move would mark a sharp change from the Bush administration, which established military tribunals to prosecute detainees at the Navy base in Cuba and strongly opposes bringing prisoners to the U.S. At the White House, press secretary Dana Perino said Monday that President Bush has faced many challenges in trying to close the prison.

“We’ve tried very hard to explain to people how complicated it is. When you pick up people off the battlefield that have a terrorist background, it’s not just so easy to let them go,” Mrs. Perino said. “These issues are complicated, and we have put forward a process that we think would work in order to put them on trial through military tribunals.”

But Mr. Obama has been critical of that process and his legal advisers said finding an alternative will be a top priority. One of those advisers, Harvard law professor Laurence Tribe, acknowledges that bringing detainees to the U.S. would be controversial but said it could be accomplished.

“I think the answer is going to be, they can be as securely guarded on U.S. soil as anywhere else,” Mr. 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 think the Bush administration’s military commissions were a farce and dislike the idea of giving detainees anything less than the full constitutional rights normally afforded everyone on U.S. soil.

“I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake,” Jonathan Hafetz, an American Civil Liberties Union lawyer who represents detainees, said Monday. “We do not need a new court system. The last eight years are a testament to the problems of trying to create new systems.”

Senate Judiciary Committee member John Cornyn, Texas Republican, said it would be a “colossal mistake to treat terrorism as a mere crime.”

“It would be a stunning disappointment if the one of the new administration’s first priorities is to give foreign terror suspects captured on the battlefield the same legal rights and protections as American citizens accused of crimes,” he said Monday, noting that the Senate overwhelmingly passed a nonbinding Senate bill last year opposing bringing detainees to the U.S.

Mr. Obama did not vote on that measure. He has said the civilian and military court-martial systems provide “a framework for dealing with the terrorists,” and Mr. 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.


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