MICHELE NORRIS, host:
There are many questions left unresolved in President Obama's executive orders to close the detention facility at Guantanamo Bay and to review the military commissions. To explore some of those, we're joined by John Bellinger, former legal adviser to Secretary of State Condoleezza Rice. Bellinger says he's glad to see an executive order to close Guantanamo Bay signed.
Mr. JOHN BELLINGER (Former Legal Adviser to Secretary of State): This is a welcome executive order. It's something, frankly, that I've long supported, and it was sad that we could not order the closure of Guantanamo during our administration.
But that's about as far as this order actually goes - is to order the closure of Guantanamo within a year. That's really the one thing that's new. The rest of it is to order a review of all of the detainees to determine whether they can be released, whether they can be transferred or whether they can be prosecuted.
But it does not prejudge any of that. It doesn't order them to be released or to be transferred. It does not say how they ought to be prosecuted. It simply says that there shall be a review.
NORRIS: A review that probably would need to take place pretty quickly if they want to hit that one-year mark.
Mr. BELLINGER: Yes. It's - and they're going to have a difficult time with this. I think that there is expectation that, as soon as the new team comes in and looks at all of these files, that they're going to find a lot of easy cases. But I think, you know, we had started with about 770 people in Guantanamo. We're down to about 240, of whom 60 have already been approved for release. And there's a perception that there are still low-hanging fruit.
You know, Michele, there's been extreme rhetoric on our side about the worst of the worst. But I do worry that there's become a little bit of extreme rhetoric on the other side about, most of these people were wrong place at wrong time. And so to the extent that there's an expectation that the review will immediately determine that there are a bunch of shepherds there, I don't think that's going to happen either.
NORRIS: Let's talk venue. You are a strong proponent for trying these prisoners within the military tribunal system. President Obama has hinted that he's open to looking at federal court or to some other kind of military system. Where do you think that ball is most likely to land?
Mr. BELLINGER: Well to be clear, I think that simply the federal courts for the people who are in Guantanamo now will be difficult because either our federal courts didn't have jurisdiction over their activities that took place prior to 9/11 or because these people were picked up by soldiers on the battlefield. There's difficulty with witnesses and evidence.
I think it's certainly worth looking at going back to the court martial system. And I think what this executive order suggests is the individuals will be reviewed to determine whether they can be prosecuted at all and then, two, what kind of a system, including the federal courts or some other systems, that they can be prosecuted in.
And that's a wise thing for President Obama to do is to look at all of the options. Personally, I think he's going to be under huge pressure to scrap the military commissions. If he goes back to a court martial system, though, and there are merits to doing that, that could take quite a long time. He'll have to seek, I believe, new legislation, start all over. There could be a year or more delay.
NORRIS: What about the cases that are in process? The people who are yet to stand trial for activities associated with 9/11, Khaled Sheikh Mohammed, for instance. How does this order affect those cases?
Mr. BELLINGER: Well, they would be part of the group at Guantanamo, the 240 or so, whose cases would be reviewed to determine whether they would be released, transferred or prosecuted; if so, in what system; or otherwise detained. I have to think we can certainly assume they are not going to be released or transferred. The question will then be, could they be prosecuted and if so, in what system?
And it may be that the Obama administration will find that it is just too difficult, particularly given the interrogation techniques that they were subject to, including waterboarding, may be too difficult to try them.
On the other hand, they have had statements that have been given to FBI clean teams, and maybe the Obama administration will be able to find that they can be prosecuted, but they will be amongst the difficult cases for review.
NORRIS: John Bellinger, good to talk to you. Thanks so much for coming in.
Mr. BELLINGER: Nice to be back, Michele.
NORRIS: John Bellinger is the former legal adviser to Secretary of State Condoleezza Rice.