Guantanamo Ruling May Roil Obama, McCain With No Alternatives

By James Rowley and Greg Stohr

June 13 (Bloomberg) -- The campaign promises of John McCain and Barack Obama, coupled with a U.S. Supreme Court decision yesterday, mean Guantanamo Bay's days as a prison for suspected terrorists are probably numbered.

What isn't clear is what comes next.

The court's 5-4 ruling likely removes any legal advantage the government had in keeping the inmates at Guantanamo, a U.S. naval base on Cuban soil that has become a flashpoint for charges of human-rights abuses. The justices said the detainees are entitled to constitutional protections, including the right to petition federal courts seeking release.

Shutting down the prison, as the presumptive Republican and Democratic presidential nominees both vow to do, would mean finding places for 270 inmates, including dozens who lack a home country to take them in. Many prisoners would have to be shifted to prisons on the U.S. mainland, a notion that is already drawing the ire of elected officials from places that might be affected.

``We can't suddenly decide we are going to close Guantanamo,'' says Virginia Senator John Warner, a Republican who is a former Navy secretary and a critic of the Bush administration's treatment of detainees. It's ``a logistical problem of some serious magnitude.''

The prison has posed a quandary for U.S. officials for years -- including President George W. Bush, who says he too wants to close it. While some inmates are in their seventh year of captivity, not a single military trial has gone forward, and the facility has been condemned as inhumane by human-rights groups, the United Nations and a British parliamentary committee.

`Terrible Blight'

``Guantanamo has been a terrible blight on the integrity of this nation,'' says Democratic Senator Dianne Feinstein, a California Democrat who has proposed closing the prison complex.

While U.S. diplomats are trying to negotiate repatriation of some inmates to their home countries, they want assurances that released prisoners won't pose security risks and or face retribution in their home countries.

The U.S. ``can't just drop them off at the door and say, `Fare thee well,''' says Joe Mellott, a spokesman for Clint Williamson, the U.S. ambassador-at-large for war-crimes issues.

Some inmates, such as 16 Uighurs -- members of a Turkic population in western China -- say they will be tortured if they are returned to their home countries. Repatriating the Uighurs, who were captured in Afghanistan, ``is not an option,'' Mellott says.

Stiff Resistance

Legislative proposals to move inmates to military prisons in the U.S., such as Fort Leavenworth, Kansas, or the Navy Brig in Charleston, South Carolina, have met with stiff resistance from lawmakers in those states.

``The whole state doesn't like it,'' Republican Senator Sam Brownback of Kansas says of the Fort Leavenworth idea. ``We're not ready to handle it.''

For politicians, such a move would be reminiscent of President Jimmy Carter's decision to house Cuban refugees from the 1980 Mariel boat lift at the Army's Fort Chaffee, in Arkansas. The resulting uproar contributed to the re-election defeat of then-Governor Bill Clinton, Carter's fellow Democrat.

The Guantanamo prison, set up in 2002 to detain accused al-Qaeda fighters captured after the Sept. 11 attacks, is on land the U.S. occupies under a 1903 lease with its adversary Cuba. The lease can be canceled only by both countries.

Camp Justice

In addition to the prison, a compound a few miles away called Camp Justice includes 100 tents for lawyers, judges and visitors and a corrugated metal building protected by concertina wire that houses the courtroom. That's where self- proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and four other men accused of murder and related 9/11 crimes were arraigned earlier this month.

Camp Justice was designed to be moveable, says Army Colonel Wendy Kelly of the Pentagon's Office of Military Commissions. ``Everything in here can be dissembled and can be packed up.''

In 2003, the prison held 680 detainees, including many captured during the U.S. invasion of Afghanistan, where al- Qaeda operated training camps. More than 400 have since been released to their home countries, including Pakistan and Saudi Arabia.

The remaining detainees fall into three categories: those to be tried on criminal charges, those officials would like to transfer to another country and those whom the Bush administration says it won't release even though they won't face charges.

Stuck With It?

Defense Secretary Robert Gates, who last year ordered the Pentagon to study ways to close Guantanamo, now says the U.S. is ``stuck'' with the prison because of the difficulty finding other places to put dangerous prisoners.

Neither McCain nor Obama agrees: Both unequivocally pledge to eliminate the prison. Illinois Senator Obama, 46, who as recently as last month said he would close Guantanamo, praised yesterday's Supreme Court ruling as ``a rejection of the Bush administration's attempt to create a legal black hole at Guantanamo.''

McCain, a former Vietnam prisoner of war who says the U.S. mustn't torture captured terrorist suspects, yesterday repeated his commitment to close the prison. ``I always favored closing of Guantanamo Bay,'' the Arizona senator, 71, told reporters.

The next president must shut Guantanamo ``because it's just something that's hard to defend anymore,'' says Donald J. Guter, formerly the U.S. Navy's judge advocate general and now dean at Duquesne University law school in Pittsburgh. Guter supports Obama for president.

`Enemy Combatants'

The military panels created to determine whether detainees are ``enemy combatants'' afforded them few rights. In its ruling yesterday, the Supreme Court said the prisoners must be treated as if they are on sovereign U.S. territory even though the prison is on Cuban soil.

The decision, ``because it is limited to detainees held at Guantanamo, may increase the pressure on the government to close that facility,'' says Brad Berenson, a Washington lawyer who worked in Bush's White House.

The ruling ``throws the future of Guantanamo into severe doubt,'' says Neal Katyal, a Georgetown University law professor in Washington who won a 2006 Supreme Court ruling that largely favored detainees.

Even before the justices ruled, there were questions about the fairness of the tribunals, particularly because some of the evidence was obtained through coercion and possibly torture. Moreover, some inmates may now lack the mental fitness to stand trial after years of imprisonment.

That means that a President McCain or President Obama would almost surely have to decide what to do with scores of detainees who couldn't be successfully prosecuted, yet would pose a threat if released.

``You probably are going to have people who committed grave acts that you're not going to be able to convict,'' Guter says.

To contact the reporters on this story: James Rowley in Guantanamo at jarowley@bloomberg.net Greg Stohr in Washington at gstohr@bloomberg.net

Last Updated: June 13, 2008 00:00 EDT

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