According to Jan Greenburg, President Bush may soon decide whether to close Guantanamo Bay. According to Greenburg, President Bush is to be briefed on issues related to the base and the recent Boumediene decision and may make a decision (although not publicly), before departing for the G8 summit this Saturday.
Greenburg points out what I think is the more likely course, that “[President Bush] will soon announce a host of [the] legal and policy [issues] that will force Congress to come up with a solution–including where to imprison those detainees if GTMO does, in fact, shut its doors.”
In a forthcoming essay in The Northwestern University Law Review I discuss some of the legal and policy issues which the administration and congressional reformers must remain cognizant of. The draft version of my essay “Beyond Guantanamo, Military Commissions and National Security Courts: Options and Obstacles” and can be downloaded here.
If the President is contemplating closing Guantanamo, the most salient part of my essay is Part Two which focuses on obstacles to establishing some form of national security court or alternative to the detention and trial regime present in Guantanamo.
First, the 75-80 “triable” detainees (e.g. those which DoD has identified for trial by military commission) may be able to assert speedy trial motions upon transfer to the United States. I focus on these 75-80, because they are a sui generis class which DoD has identified as being held for both punitive and preventive reasons.
Second, related to the speedy trial issue are the challenges posed by protecting classified information. While federal courts have previously handled cases involving intelligence information, they have not had to deal with a sudden influx of 75-80 simultaneous cases dealing with heavily classified information. This will place a strain on the federal courts which they have yet to experience. Moreover, it is questionable whether the Department of Justice has enough security cleared personnel to swiftly and simultaneously bring these cases to trial. (Setting aside the other clearance issues related to court personnel, defense counsel and secured facilities).
Finally, and again related to intelligence is the issue of originator controlled intelligence information. Quite simply, some allied powers may have provided intelligence information about a detainee to the U.S. for use a) only for detention through the CSRT process or b) only for use in a military commission trial. Should the President decide to move detainees to the U.S., the originator (who controls the intelligence) may very well decide to deny further use of the information.
All of these issues (and others identified in the draft essay) will need to be addressed prior to the closure of Guantanamo. Of course, the President could simply effectuate the transfer and leave the problem as a steaming mess for Congress, the courts and, given the scope of the mess, President McCain/Obama to sort out. While that might make some chuckle at the expense of Congress and the courts, it won’t make us any safer…then again closing Guantanamo won’t make us any safer either, at least not without an adequate and robust substitute for the current detention and trial regime.
