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THE WASHINGTON
POST
Closing Guantanamo
It's inevitable;
better that Mr. Bush do it,
while fixing the
flawed legal system behind it.
From
washingtonpost.com on the Web, June 27, 2007
Washington -- THE BUSH
administration appears to be inching toward a conclusion that most of the world
reached long ago: The Guantanamo Bay prison for terrorism suspects has
been a disaster and must be shut down. Both Secretary of State Condoleezza
Rice and Defense Secretary Robert M. Gates have urged Mr. Bush to move
Guantanamo's detainees to the United States. If he does not act, the
prison will surely be closed by Congress or Mr. Bush's successor. If the
president moves now, he can mitigate the stain Guantanamo will leave on his
legacy. More important, he can help to create a sustainable basis for
holding and interrogating foreign terrorism suspects in the future.
Closing Guantanamo will deprive U.S. adversaries, from Osama bin Laden to Hugo
Chávez, of a powerful symbol they use to besmirch America and justify their own
abuses. But it will not solve the problems created by the Bush
administration's decision to set aside the Geneva Conventions in holding
hundreds of prisoners indefinitely without charge. Nor will it address the
continuing need to detain and interrogate a small number of foreign terrorism
suspects who are captured far from a conventional battlefield and can't be
charged under U.S. criminal law but who may pose a deadly threat to this
country. The administration's attempt to create a legal basis for
detentions and trials at Guantanamo, hastily approved by Congress last year,
only deepened the mess -- as evidenced by recent judicial rulings that stopped
the first trials by military commissions before they could begin.
Simply closing Guantanamo and transferring its prisoners to their home countries
or to prisons in the United States, as several pending bills in Congress would
mandate, would create another legal quagmire. The detainees almost
certainly would recover the right of habeas corpus, allowing them to challenge
their detentions in court. While we believe the prisoners should have that
right, the result would be years of litigation challenging both the military
commissions and the tribunal system the administration created for determining
whether prisoners were "enemy combatants" subject to detention without charge.
Both those legal systems need considerable improvement. But it would be
better if the changes were implemented soon and legitimized by democratic
process rather than imposed by federal judges.
That's why the closure of Guantanamo should be accompanied by legislation
creating a sound and sustainable basis for holding, interrogating and trying
foreign prisoners. Despite last year's failure, Mr. Bush still has the
opportunity to strike a deal with Congress. He can and should offer a lot:
the closure of Guantanamo and major improvements in the commissions and
tribunals. In particular, those suspects to be held without trial as
unlawful enemy combatants should be given far more due process. They
should have lawyers and be allowed to call witnesses and challenge evidence.
Their cases should be considered by full-fledged judges whose decisions can be
appealed, and reviews should occur more frequently. This is far from
impractical: Israel and, until recently, Britain have successfully used
similar administrative systems to hold suspected terrorists.
In exchange, Mr. Bush can seek Congress's authorization to hold a limited number
of foreigners in the United States without charge and to try some suspects --
such as the top leaders of al-Qaeda -- under rules that would depart from those
of conventional courts-martial and criminal trials. He could create a
legal system for the war on terrorism that could serve future presidents.
If he fails to act, he will be remembered as the president who created the
terrible mistake that is Guantanamo -- and who missed his chance to fix it.
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