Bush Administration Considers Guantanamo Closure

I'll believe it if it happens, but according to the New York Times, Bush administration officials are discussing providing more legal rights to the Guantanamo detainees it seeks to hold as enemy combatants.

The discussions are described as a step on the road to closing Gitmo. Why the change of heart? The Administration may be fearful the next case the Supreme Court decides will be too generous to the detainees.

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 to challenge their confinement in habeas corpus suits in federal court.

If the administration loses that case, it could give the detainees even more legal rights and 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.


The officials talking to the Times cite numerous possibilities, most of which seem to involve moving the detainees to facilities in the U.S -- and possibly building one to house them. Cited as under discussion:

  • giving the detainees lawyers and having federal judges determine their status as enemy combatants
....a specially created federal court with strict rules to protect classified information would hear detainee 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 in the habeas corpus cases the detainees are seeking in the Supreme Court, lawyers said.
  • Allowing detainees in the U.S. to bring habeas actions
  • Keeping the current military commission hearing practice, substituting military judges for the hearing officers who currently make the decisions.
Under current procedures at Guantánamo, military officers decide whether detainees are properly held as enemy combatants, and the suspects are not permitted lawyers in the detention hearings, known as Combatant Status Review Tribunals.

The new rights would only apply to detaines held in the U.S. They would not apply to the 24,500 detainees the U.S. is holding in Iraq.

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    while that's a good reason, (5.00 / 1) (#1)
    by cpinva on Sun Nov 04, 2007 at 01:47:14 AM EST
    there may well be a more political aspect to this; one less thing for the dems to keel haul their republican opponents with in 2008. bush may not give a damn, but those incumbents running for re-election might.

    A lot can happen in a year (5.00 / 1) (#2)
    by manys on Sun Nov 04, 2007 at 03:52:31 AM EST
    I'll predict that it's a trial balloon being floated so as to put the issue of Guantanamo in flux. Maybe it'll close, maybe it won't...who knows! Not us, not the candidates, and the Administration will say it's a secret.

    Whatever happens with this idea, the grand resolution will be to do whatever is best for Bush and Republicans. Over the next year this will give him another lever to pull. It'll start slow, but we'll see this story grow over the next 6mos or my name isn't Orville Redenbacher.

    Think of it another way: what's going on with the Republican Presidential candidate race? Arguing over how quickly to bomb Iran? They obviously need a new issue to bounce off each other, and I think this is the next one.


    More than one way to avoid adverse ruling ... (none / 0) (#3)
    by cboldt on Mon Nov 05, 2007 at 06:20:25 AM EST
    I think it's good that the government come up with a system for handling the range of cases that are apt to come before the US authorities.  If the military commissions lack minimum due process, then clearly an adjustment is warranted.

    Both the administration and Congress want to avoid being called out by a Court, and there are myriad ways to avoid this.  See Padilla's transfer to civilian jurisdiction and al-Marri's transfer to military jurisdiction, in the US.  Katyal has speculated that Boumediene might be released and deported in order to moot his case -- crafting a state of flux around the military commission process is just another way to short circuit criticism of the previously existing process.

    There was one statement in the article that particularly caught my eye.  "need[ing] legislation allowing detainees deemed to be a threat to be held until the end of hostilities in the war on terror, even if they were not charged with war crimes."

    This is to apply to to people held in the US.  I assume, regardless of their locus of capture.  Next, see the MCA for the list of war crimes, one of which is conspiracy.  This is a recent addition, made in response to an adverse SCOTUS ruling that held "conspiracy is not crime recognized as triable to a military commission."  Then put the two pieces together.