Team Infidel
Forum Spin Doctor
Financial Times
October 17, 2008
By Demetri Sevastopulo, in Washington
President George W. Bush will leave a decision to shut the Guantánamo Bay prison camp to his successor by not pressing Congress for legislation to help close it – even though the Pentagon drafted options to do so, according to former and current officials.
In 2006, Mr Bush said he wanted to close Guantánamo. But when Robert Gates, his defence secretary, this year produced options to close it, they were rejected by the White House.
The decision to shut the controversial Cuba-based detention facility will now almost certainly fall to either Barack Obama or John McCain, the Democratic and Republican presidential candidates. While both men have pledged to close Guantánamo, neither one has provided a detailed plan for its closure.
Condoleezza Rice, secretary of state, and Mr Gates could not overcome opposition from the justice department, which baulked at the idea of moving prisoners from Guantánamo to a military facility in the US, which in the short-term was the only solution.
Mr Gates hinted at those divisions last year by telling Congress that he had “run into obstacles ” from administration lawyers on issues such as legislation needed to give detainees the correct level of rights in the US while ensuring the protection of the US population.
At the time, Mr Gates assured senators that the Pentagon was working on a proposal that, he hoped, could bridge the differences. But his efforts met insurmountable opposition from the justice department, which was backed by the White House.
“I don’t believe you can have that kind of protection,” said Tony Fratto, a White House spokesman. “We don’t believe detainees should be brought to the US.”
The battle came to a head after the Supreme Court in June ruled in Boumediene that detainees enjoyed the right of habeas corpus, which allowed them to challenge their detention in US courts. The state department argued that the administration – on the losing end of yet another Guantánamo-related legal battle – should finally seek legislation to help close the facility, but it was beaten back by the justice department.
“There has been resignation in the ‘Close Guantánamo’ camp over the past few months that nothing is going to happen, particularly in the wake of Boumediene, which could have been a spur but was not,” said one former official.
The White House agreed with the justice department that bringing detainees into the US could impact national security because the administration could lose control over their eventual release. Following the Supreme Court decision, Michael Mukasey the attorney-general, told an audience at the American Enterprise Institute that “no court should be able to order than an alien captured and detained abroad during wartime be admitted and released into the US.”
The justice department welcomed legislation introduced by Senators Lindsey Graham and Joseph Lieberman, two close friends of Mr McCain, that was focused on dealing with the outcome of the Boumediene decision by barring courts from ordering the release of detainees into the US. A spokeswoman for Patrick Leahy, the Democratic chairman of the Senate judiciary committee, said he had no plans to consider the bill this Congress.
The White House also detected signs that Congress might resist legislation in an election year. The Senate last year overwhelmingly approved a non-binding resolution that said detainees “should not be…transferred stateside into facilities in American communities and neighbourhoods”.
While the vote raised questions about whether Congress would ever allow Guantánamo detainees to come to the US, some observers said the language about “American communities” had been worded to produce the landslide 94-3 result, suggesting that opposition was less firm.
Mr McCain, for example, supported the resolution, but Jill Hazelbaker, his spokeswoman, said he would close Guantánamo by transferring prisoners to Fort Leavenworth, a military facility in Kansas.
Matthew Waxman, a former top Bush administration official for detainee affairs, said he did not “see an option for closing Guantanamo that does not involve moving some very dangerous detainees to US facilities” while saying there would ”likely be a ’not in my backyard’ political issue”.
”[But] the argument from a security standpoint that bringing detainees to the US exposes the US to unprecedented risk is a false one. We have prosecuted, and have in US prisons today, al-Qaeda terrorists,” he said
Sandra Hodgkinson, the current top Pentagon official for detainee issues, said ”if the president asks that question, we would be prepared to give him a range of options”. She added that they ”would likely involve confinement facilities on a US military base within the continental US” but declined to say which facilities were under considering.
In any event, she said the Pentagon would need to build new infrastructure - including maximum-security cells and proper medical facilities - before a transfer could be made. She estimated it would take no longer than two years after receiving legislation.
With no efforts to get that legislation, the State department is ramping up efforts to find countries to take the 60 detainees - out of a population of 255 – cleared for release. But those efforts have been become more difficult as the easier cases have been settled.
The pace of transfers has dropped this year, for example. The US transferred 129 detainees out of Guantanamo in 2006, another 125 in 2007, but only about 20 so far this year. The Pentagon has also been hampered by the fact that half of the 60 detainees slated for release have raised legal objections to their transfer.
One major headache for the administration continues to be the case of 17 Uighurs – Muslim Chinese from Xinjiang province – that the US has asked more than 60 countries about taking as refugees. But other countries have been reluctant to help, partly because of opposition from China, but also because the US has been unwilling to take any itself.
While the state department has sought help from countries such as Germany, Austria, Sweden and Ireland, the justice department argued in a recent court submission that the Uighurs were dangerous.
One senior administration official said the state department had pushed to bring a handful of Uighurs to the US in order to persuade other countries to take the remainder, arguing that this would help avoid a scenario where a US court ordered their release.
That scenario became a potential reality last week when a US court ordered the Pentagon to release the Uighurs in the US. The order was temporarily blocked while an appeals court considers the case.
“Other countries have to a certain extent breathed a sight of relief when they read this ruling [sensing] that they might not have to help out, but we will have to see how the litigation goes,” said the senior official.
Washington is also grapping with how to deal with 100 Yemenis, including 15 who have been cleared for release. It is concerned about sending them back to Yemen – the only option – in the wake of last month’s attack on the US embassy in the country.
“While a big announcement is perhaps not any closer politically, the building blocks to just get it done under this president, or certainly under another president, are being quietly done by...transfers,” the official added.
Even if the US managed to transfer the 60 detainees, including the Uighurs, that would still not resolve the fate of the about 80 men who are expected to be charged before military commissions. The US also needs to work out how to deal with the remainder, who are considered too dangerous for release, but who are not expected to be tried, in many cases because of a lack of evidence.
While the White House appears to have made up its mind, another senior official said there were still some people in the administration hoping to solve the problem this year.
”There are those who wish to resolve the problem before the end of the Bush administration so as not to run the risk that whichever candidate wins - and both have made clear their desire to close Guantanamo - [does] anything quick and dramatic that would potentially endanger the country.”
October 17, 2008
By Demetri Sevastopulo, in Washington
President George W. Bush will leave a decision to shut the Guantánamo Bay prison camp to his successor by not pressing Congress for legislation to help close it – even though the Pentagon drafted options to do so, according to former and current officials.
In 2006, Mr Bush said he wanted to close Guantánamo. But when Robert Gates, his defence secretary, this year produced options to close it, they were rejected by the White House.
The decision to shut the controversial Cuba-based detention facility will now almost certainly fall to either Barack Obama or John McCain, the Democratic and Republican presidential candidates. While both men have pledged to close Guantánamo, neither one has provided a detailed plan for its closure.
Condoleezza Rice, secretary of state, and Mr Gates could not overcome opposition from the justice department, which baulked at the idea of moving prisoners from Guantánamo to a military facility in the US, which in the short-term was the only solution.
Mr Gates hinted at those divisions last year by telling Congress that he had “run into obstacles ” from administration lawyers on issues such as legislation needed to give detainees the correct level of rights in the US while ensuring the protection of the US population.
At the time, Mr Gates assured senators that the Pentagon was working on a proposal that, he hoped, could bridge the differences. But his efforts met insurmountable opposition from the justice department, which was backed by the White House.
“I don’t believe you can have that kind of protection,” said Tony Fratto, a White House spokesman. “We don’t believe detainees should be brought to the US.”
The battle came to a head after the Supreme Court in June ruled in Boumediene that detainees enjoyed the right of habeas corpus, which allowed them to challenge their detention in US courts. The state department argued that the administration – on the losing end of yet another Guantánamo-related legal battle – should finally seek legislation to help close the facility, but it was beaten back by the justice department.
“There has been resignation in the ‘Close Guantánamo’ camp over the past few months that nothing is going to happen, particularly in the wake of Boumediene, which could have been a spur but was not,” said one former official.
The White House agreed with the justice department that bringing detainees into the US could impact national security because the administration could lose control over their eventual release. Following the Supreme Court decision, Michael Mukasey the attorney-general, told an audience at the American Enterprise Institute that “no court should be able to order than an alien captured and detained abroad during wartime be admitted and released into the US.”
The justice department welcomed legislation introduced by Senators Lindsey Graham and Joseph Lieberman, two close friends of Mr McCain, that was focused on dealing with the outcome of the Boumediene decision by barring courts from ordering the release of detainees into the US. A spokeswoman for Patrick Leahy, the Democratic chairman of the Senate judiciary committee, said he had no plans to consider the bill this Congress.
The White House also detected signs that Congress might resist legislation in an election year. The Senate last year overwhelmingly approved a non-binding resolution that said detainees “should not be…transferred stateside into facilities in American communities and neighbourhoods”.
While the vote raised questions about whether Congress would ever allow Guantánamo detainees to come to the US, some observers said the language about “American communities” had been worded to produce the landslide 94-3 result, suggesting that opposition was less firm.
Mr McCain, for example, supported the resolution, but Jill Hazelbaker, his spokeswoman, said he would close Guantánamo by transferring prisoners to Fort Leavenworth, a military facility in Kansas.
Matthew Waxman, a former top Bush administration official for detainee affairs, said he did not “see an option for closing Guantanamo that does not involve moving some very dangerous detainees to US facilities” while saying there would ”likely be a ’not in my backyard’ political issue”.
”[But] the argument from a security standpoint that bringing detainees to the US exposes the US to unprecedented risk is a false one. We have prosecuted, and have in US prisons today, al-Qaeda terrorists,” he said
Sandra Hodgkinson, the current top Pentagon official for detainee issues, said ”if the president asks that question, we would be prepared to give him a range of options”. She added that they ”would likely involve confinement facilities on a US military base within the continental US” but declined to say which facilities were under considering.
In any event, she said the Pentagon would need to build new infrastructure - including maximum-security cells and proper medical facilities - before a transfer could be made. She estimated it would take no longer than two years after receiving legislation.
With no efforts to get that legislation, the State department is ramping up efforts to find countries to take the 60 detainees - out of a population of 255 – cleared for release. But those efforts have been become more difficult as the easier cases have been settled.
The pace of transfers has dropped this year, for example. The US transferred 129 detainees out of Guantanamo in 2006, another 125 in 2007, but only about 20 so far this year. The Pentagon has also been hampered by the fact that half of the 60 detainees slated for release have raised legal objections to their transfer.
One major headache for the administration continues to be the case of 17 Uighurs – Muslim Chinese from Xinjiang province – that the US has asked more than 60 countries about taking as refugees. But other countries have been reluctant to help, partly because of opposition from China, but also because the US has been unwilling to take any itself.
While the state department has sought help from countries such as Germany, Austria, Sweden and Ireland, the justice department argued in a recent court submission that the Uighurs were dangerous.
One senior administration official said the state department had pushed to bring a handful of Uighurs to the US in order to persuade other countries to take the remainder, arguing that this would help avoid a scenario where a US court ordered their release.
That scenario became a potential reality last week when a US court ordered the Pentagon to release the Uighurs in the US. The order was temporarily blocked while an appeals court considers the case.
“Other countries have to a certain extent breathed a sight of relief when they read this ruling [sensing] that they might not have to help out, but we will have to see how the litigation goes,” said the senior official.
Washington is also grapping with how to deal with 100 Yemenis, including 15 who have been cleared for release. It is concerned about sending them back to Yemen – the only option – in the wake of last month’s attack on the US embassy in the country.
“While a big announcement is perhaps not any closer politically, the building blocks to just get it done under this president, or certainly under another president, are being quietly done by...transfers,” the official added.
Even if the US managed to transfer the 60 detainees, including the Uighurs, that would still not resolve the fate of the about 80 men who are expected to be charged before military commissions. The US also needs to work out how to deal with the remainder, who are considered too dangerous for release, but who are not expected to be tried, in many cases because of a lack of evidence.
While the White House appears to have made up its mind, another senior official said there were still some people in the administration hoping to solve the problem this year.
”There are those who wish to resolve the problem before the end of the Bush administration so as not to run the risk that whichever candidate wins - and both have made clear their desire to close Guantanamo - [does] anything quick and dramatic that would potentially endanger the country.”