After Boumedine, What Next to Close Guantanamo?

Since the Supreme Court delivered a "stinging rebuke of the Bush administration's flawed detention policies" last month by ruling that prisoners at Guantanamo Bay are entitled to habeas corpus rights, the White House has been scrambling to respond. Last week, ABC News reported that "[h]igh-level discussions among top advisers have escalated," and officials may ask Congress to "spell out procedures for scores of suspected terrorists whom the government does not plan to bring to trial." Roughly 270 detainees remain at Guantanamo, and a total of just 20 men "have been charged as part of a military commission system set up by Congress in 2006, including five accused of participating in the conspiracy that led to the Sept. 11 attacks." In the past, senior administration officials -- including Defense Secretary Robert Gates and Secretary of State Condoleezza Rice -- have reportedly pushed for the closure of the detention facility but been blocked by Vice President Cheney. This time may not be any different. President Bush insisted to Fox News on Thursday, "We're analyzing the decision and how to move forward, and there's no decision that is imminent on Guantanamo." The issue remains as urgent as ever. Last month, former Navy general counsel Alberto Mora told the Senate Armed Services Committee, "[T]here are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq -- as judged by their effectiveness in recruiting insurgent fighters into combat -- are, respectively the symbols of Abu Ghraib and Guantanamo."

Blocked by Cheney

The desire to close Guantanamo Bay has been on the minds of administration officials for years. "I'd like to close Guantanamo," Bush said in 2006. When he first took office that same year, Gates urged the President to shut down the detention facility "as quickly as possible" because it had become "so tainted abroad that legal proceedings … would be viewed as illegitimate." Yet voices for closure have been blocked by opponents such as Cheney and former attorney general Alberto Gonzales. In September 2007, Gates told Congress that his push to close the facility was running into "obstacles" from administration lawyers. A few months later, a senior administration official told the Financial Times that the effort "lost the intensity needed to have a realistic chance of closing the prison during the Bush administration." Although Gonzales is gone, Cheney is still around, leaving open the possibility that he will once again block any progress. Additionally, Gonzales has been replaced by Michael Mukasey, who told the Senate during his confirmation hearing, "I can't simply say we have to close Guantanamo."

A Plan for Closure

According to the Washington Post, administration officials are considering a proposal where "about 80 detainees would remain at the facility in Cuba to be tried by military commissions, and about 65 others would be turned over to their native countries." The issue still left to be resolved is "what to do with about 120 remaining prisoners, who are viewed by the administration as too dangerous to release but who are unlikely to be brought before military commissions because of a lack of evidence." The Center for American Progress's Ken Gude has put forth a five-phase plan to close Guantanamo over an 18-month period. The plan includes bringing "a small number of detainees into the United States to stand trial in regular federal or military courts," rather than under the flawed Military Commissions. It would create "a resettlement and rehabilitation program in partnership with allied countries and international organizations to find homes for detainees that can't be returned to their home countries" and transfer the remaining detainees to stand trial in the United States. Those detainees would be housed at either the U.S. Penitentiary Administrative Maximum Facility in Florence, CO, or at the U.S. Military Detention Barracks at Ft. Leavenworth, KS. Detainees captured in Afghanistan who are not candidates for trial but are too dangerous to be released would be transferred back to Afghanistan and held in a NATO-controlled detention program.