Illinois Sen. Barack Obama and Arizona Sen. John McCain agree that the U.S. prison camp at Guantanamo Bay, Cuba, should be closed. But they disagree on what to do with the roughly 270 detainees still held there.
For months, the Pentagon has said that around 80 of these prisoners were no longer a threat to the U.S., and it has been trying to transfer them off the island, with little success. Their home governments will not take them back and may persecute or release them, thereby creating a security risk.
The U.S. wants to try another 80 prisoners. Roughly 100 more are considered too dangerous to release but will not be prosecuted.
Susan Rice, Obama's foreign policy adviser, says it is unclear how this situation will change with a new administration.
"That's premature," she says. "And until a new administration has the ability to learn what we can't — without the benefit of classified information about the nature of the detailed cases against each of these individuals — it would be sort of foolish to speculate."
Obama has said one choice is to move the terrorism suspects to a civilian prison on the mainland, such as the "Supermax" facility in Florence, Colo., where several high-profile convicted terrorists are held. He favors trying the men under civilian or military law.
McCain disagrees with transferring the Guantanamo detainees to a civilian facility. He says they should be tried under military commissions, which were drawn up solely for the purpose of trying Guantanamo terrorism suspects.
Moving Detainees to Military Prisons
Both candidates agree that a military prison, such as Fort Leavenworth in Kansas, would be an option for holding the detainees.
Bradford Berenson is a Washington lawyer who helped draw up the Bush administration's Guantanamo detention policies. He says a new president should think twice about importing the detainees into the heartland of the U.S.
"There would be a tremendous backlash, whether fairly or unfairly," he says. "It would probably play out like the gays in the military issue did for President Clinton early in his term. It would be perceived by a large segment of the population as a sign that the new president just doesn't get it when it comes to military and intelligence and terrorism matters."
But the detainees are already one step closer to the U.S., after the Supreme Court ruled in early June that the Guantanamo prisoners have the right to challenge their detention in American federal courts. Obama applauded the court's decision; McCain did not.
"These are enemy combatants," McCain said following the high court's ruling. "These are people who are not citizens. They do not and never have been given the rights that citizens of this country have. And my friends, there are some bad people down there."
Reducing the Numbers of Detainees Through Hearings
The hearings before a federal judge to determine whether there's enough evidence to hold a detainee indefinitely could help a new president resolve the Guantanamo problem, says John Hutson, the dean of Franklin Pierce law school and a former Navy judge advocate general.
Hutson says the hearings will help weed out the innocent from the bad guys. They will also help satisfy the public that the men are being held fairly or that they really are not a threat and can safely be sent home. Hutson says that could help reduce the numbers.
"When the cases see the light of day and other countries can find out what the real evidence is, what the real situation is, they may be more inclined to take them, because they're not just dealing with rhetoric that has been propounded over the years," he says.
One theory is that the new administration should shut down Guantanamo and move the detainees to another location, such as Afghanistan. The new $12 million legal complex at Guantanamo is designed to be quickly dismantled and shipped to a new location if necessary.
But lawyers Hutson and Berenson say that won't happen: It would probably be illegal to move the prisoners now that the Supreme Court has established their right to habeas corpus, allowing them to challenge their detention in U.S. courts.
But that is a long process. Despite the calls to close the prison camp, it's unlikely Guantanamo Bay will shut one day after a new president take office — or anytime soon after that.