ARI SHAPIRO, host:
President-elect Barack Obama has been unequivocal about wanting to close the prison camp at Guantanamo Bay, Cuba. NPR's Jackie Northam outlines some of the challenges the Obama administration faces as it tries to fulfill that campaign promise.
JACKIE NORTHAM: Just days after Mr. Obama won the presidential election, a transition team made up of analysts, lawyers and military officials began tackling the Guantanamo issue. They started sifting through the files of the roughly 250 men still held at the remote prison camp, trying to come up with new ideas to solve the Guantanamo conundrum. This was pretty much what John Bellinger has faced as legal adviser to Secretary of State Condoleezza Rice. Bellinger is now helping the transition team.
Mr. JOHN BELLINGER (Legal Advisor to the Secretary of State): I have no doubt that the next team will move to close Guantanamo rapidly, but they will be bedeviled with the same issues that we have.
NORTHAM: Those issues center on what to do with the terror suspects if the Guantanamo prison camp is shuttered. Around 500 of the former prisoners have been released. About another 60 are cleared to go, but there are problems finding countries willing to take them. Bobby Chesney, a Wake Forest University law professor, says the new Obama administration should capitalize on its vast reservoir of international good will.
Professor BOBBY CHESNEY (Law, Wake Forest University): There's some talk that with a new administration on the way, that other states, perhaps some European states, may be willing to take in some detainees. But a lot of the smoke signals in that area suggest that the United States has to be willing to do some of the same.
NORTHAM: It's widely believed that if and when the Guantanamo camp is closed the prisoners will be brought to the U.S. mainland. Sally Hodgkinson, deputy assistant secretary of defense for detainee issues, says the new administration will have to decide where to keep the men. She says federal law requires that they be segregated from the regular prison population. [POST-BROADCAST CORRECTION: The name of the deputy assistant secretary of defense for detainee issues is SANDY Hodgkinson.]
Ms. SANDY HODGKINSON (Deputy Assistant Secretary of Defense for Detainee Issues): You would require some modifications to any existing facilities to ensure the security situation was adequately mitigated. You would also need to ensure that there were all of the same types of facilities that we have at Guantanamo Bay. So you would need, obviously, additional medical facilities, you would need additional transportation options.
NORTHAM: Mr. Obama may have to spend some of his domestic political capital finding a location for the Guantanamo prisoners. The Pentagon has faced outright anger from community and political leaders in virtually every location it's checked out. Things get even trickier when it comes to prosecuting the suspects. The Obama team will have to decide under which system to try the men. Bellinger says some of the key terror and counterterrorism statutes were not on the books when many of the Guantanamo detainees were picked up.
Mr. BELLINGER: So for an average Yemeni or Saudi who had traveled for Afghanistan to simply train, but had not yet formed a terrorist plot, not altogether clear that someone could be tried in federal court for that.
NORTHAM: One option would be to create national security courts, which would have greater latitude for classified material and hearsay evidence. That would require legislation, and many analysts say national security courts would be too much like the troubled military commissions now in place at Guantanamo. Bradford Berenson, a Washington lawyer who helped draw up the policies for the military commissions, says the new administration has a much tougher problem to solve than just figuring out how to prosecute the terror suspects.
Mr. BRADFORD BERENSON (Lawyer): What are you going to do with the detainees who cannot be tried in a normal court proceeding, but who are also too dangerous to release back out into the world?
NORTHAM: There are currently about 80 Guantanamo prisoners who fall into that category. There's not enough evidence to prosecute them, but U.S. intelligence agencies believe the men would pose a serious risk if released. Berenson says that problem still exists.
Mr. BERENSON: I think the policies that have led to preventive detention for suspected foreign terrorists at Guantanamo will probably change far less in the new administration than many people on the left hope and expect. And that's because those policies were adopted out of a sincere and genuine concern for protecting the public.
NORTHAM: Some analysts say the new administration should not perpetuate the policy of preventive detention. It should prosecute the men and run the risk of acquittal. The question is, if a suspect is acquitted and no other country will take him, would he be free to walk out the front door of the courtroom? All those interviewed for this report say it's important that Mr. Obama get Congressional backing for whatever policies he puts in place. Wake Forest University's Chesney says the new administration also needs to think beyond Guantanamo.
Prof. CHESNEY: My advice would be to be mindful of how the policies designed to shut down and deal with Guantanamo may relate to larger questions going forward. Such as, what's our detention policy in connection with ongoing armed conflict in Afghanistan and Pakistan?
NORTHAM: When it comes to Guantanamo, there are no easy answers for the new administration. Jackie Northam. NPR News, Washington.