William Glaberson gives a current and fairly comprehensive analysis of the complications surrounding the possible closure of Guantanamo detainee camps, which paints a fairly frustrating outlook, but it's a good read nonetheless. (From the International Herald Tribune):
WASHINGTON: U.S. officials are considering granting Guantánamo Bay detainees substantially greater rights as part of an effort to close the detention center and possibly move much of its population from Cuba to the United States, according to officials involved in the discussions.
One proposal that is being widely discussed in the administration would overhaul the procedure for determining whether detainees are properly held by granting them legal representation at detention hearings and by giving judges, not military officers, the power to decide whether detainees should continue to be held.
The Bush administration has insisted for more than five years that a central legal pillar of its war on terrorism is that the military alone has the power to decide which foreigners should be held and for how long, and backing away from that would be a sharp change of course.
Yet some officials say that enhancing detainees' rights could also help the administration strategically, by undercutting a case now before the Supreme Court that could wind up winning those at Guantánamo even more power to challenge their detentions.
Before any detainees can be moved, officials have said that they would need to find or build a secure site and that they would need legislation allowing detainees deemed to be a threat to be held "until the end of hostilities" even if they were not charged with war crimes.
Under current proposals, one-third or more of the 330 detainees might continue to be held indefinitely without charge.
"These are dangerous men," said Sandra Hodgkinson, deputy assistant secretary of defense for detainee affairs. "There has to be an appropriate way of handling that."
Facing international criticism for holding hundreds of people without charge for years, officials from President George W. Bush on down have said they would like to close the Guantánamo prison. The discussions now under way in the administration show the complexities of the internal debate, with some officials convinced they are facing unattractive choices: keeping the prison open and continuing to draw criticism as violating human rights, or transferring the most dangerous detainees to the United States and facing the prospect that they will be entitled to increased legal protections.
In recent interviews, officials said the discussion of detainee rights was not an acknowledgment that past policies were flawed, but rather an indication that the administration was engaged in trying to assess the legal and practical consequences of shutting the detention center and moving detainees from Cuba to the United States.
Even so, some officials are arguing against making major policy shifts, and other proposals have failed in the past inside the administration. In addition, any administration proposal would probably face intense scrutiny in Congress.
Under current procedures at Guantánamo, military officers decide whether detainees are properly held as illegal enemy combatants, and the detainees are not permitted lawyers at the Combatant Status Review Tribunals.
The administration has fought for years in court and in Congress against granting the detainees more rights. In the latest instance, the Supreme Court is to consider a case brought by Guantánamo detainees who are seeking the right to go to federal court to challenge their confinement. The administration says they have no such right.
If the administration loses that case, it could create a precedent limiting the president's and the military's power. Lawyers inside and outside of government said a detailed proposal from the administration to give detainees fuller legal protections could convince the justices that they need not resolve the case, Boumediene v. Bush.
Critics of the Bush administration have accused the government on several occasions of shifting legal tactics on detainee issues when it anticipated losses in court. That perception could hurt the administration's credibility with the Supreme Court if there is a new shift while the court is considering the case, which is to be argued in December, said Barry Friedman, a law professor at New York University who is an expert on the Supreme Court.
Still, Friedman said, if the administration were to propose giving detainees new legal rights, the justices might conclude they did not need to answer the complicated question the case presents of defining the rights of detainees at Guantánamo.
"It is a tough question," Friedman said. "As a general matter the court doesn't answer tough constitutional questions if it doesn't need to."
Officials have said that to close Guantánamo, perhaps 130 of the 330 detainees there could be sent back to their home countries or to other countries, a painstaking process of reducing the number of detainees that has been going on for several years.
But the officials have said that about 200 of the detainees are too dangerous to repatriate. Of those, 80 or more, officials say, would be tried for war crimes in military commissions, with the remaining 120 or fewer held indefinitely because of military assertions that they are a threat to U.S. security.
The officials said the current discussions about ways of closing Guantánamo had become more concrete in recent weeks, with Defense Secretary Robert Gates directing his advisers to come up with a proposal for closing the detention center.
Some people outside the administration who are involved in Guantánamo issues said the political and international pressure on the detention center had now combined with concerns about the impending Supreme Court case in accelerating consideration of potential options.
Matthew Waxman, a former detainee-affairs official at the Defense Department who now teaches law at Columbia University, said the proposal to involve federal judges and detainees' lawyers in hearings on detainees' status had been discussed previously in the administration.
But, Waxman said, the proposal now "is gaining currency because you have greater recognition of the strategic costs of maintaining Guantánamo, combined with the legal risks of leaving it to the Supreme Court to decide what legal rights exist at Guantánamo."
Under the current proposal, a specially created federal court with strict rules to protect classified information would hear detainees' challenges to their detention. Judges who usually sit in regular federal courts would preside and would hear arguments from detainees' lawyers.
Few details of the proposal are known, but such proceedings would be unlikely to give the federal judges the latitude they would have if the detainees are allowed to seek a writ of habeas corpus, as they are seeking in the Supreme Court, lawyers said.
Other proposals to give detainees increased rights are also part of the discussions, people knowledgeable about the talks said. The administration could simply agree that detainees held in the United States were entitled to have their cases reviewed in habeas corpus cases.
Another proposal would improve on the Pentagon's current detention hearings, now conducted by officers, by adding military judges, for example, one person who has been briefed on the discussions said.
Hodgkinson said there were many practical concerns with proposals to increase the legal rights of detainees if they were moved from Cuba to the United States. She said Pentagon officials continued to argue that illegal enemy combatants held outside the country could be held by the military until they were no longer a threat. Military officials said this summer that they were holding 24,500 detainees in Iraq alone.
"How would we provide 25,000 lawyers in Iraq?" Hodgkinson said. "We couldn't do it if we tried."