Trying Guantanamo Detainees May Pose Challenge

President-elect Barack Obama has said closing the detention facility at Guantanamo Bay, Cuba, will be one of his first orders of business, but he acknowledges it will likely be a complicated process.

John Bellinger, a legal adviser to Secretary of State Condoleezza Rice, has worked extensively on the legal and international issues relating to the detainees. He says there are three options on how to prosecute the remaining detainees: the federal criminal system, the court-martial system and the existing military commissions system.

Problems With Federal Courts

"The problem with trying to try these individuals or future individuals captured outside the United States in federal courts is that, with respect to the people at Guantanamo, many of them were really outside the jurisdiction of our federal laws to begin with," Bellinger tells NPR's Michele Norris. "The laws on the books on 9/11 didn't even cover their activities outside the United States."

Bellinger says another complex issue is what to do with those terrorism suspects deemed dangerous but against whom there is no evidence. The issue's importance was highlighted Tuesday when the Pentagon said 61 former Guantanamo detainees had returned to terrorism since their release from custody.

Legal Framework

Bellinger says those detainees who cannot be tried but are deemed too dangerous to release would need to be continued to be held. One of the biggest questions about the closure of Guantanamo, he says, centers on the legal framework for holding the detainees or those who may be captured in the future. The Bush administration has held people who are captured as enemy combatants. The Obama administration will need to decide whether it is holding those people as enemy combatants or if it is going to hold only those people who can be tried in federal criminal courts.

"If that legal theory of holding people because they are enemy combatants is jettisoned, then the next administration will have to have a different legal theory for holding people," Bellinger says. "Many people, and I will have to say myself included, have supported seeking congressional legislation that clarifies who can be held even if in some cases they couldn't be tried."

'Many Mistakes'

Bellinger acknowledges "many mistakes" on the way Guantanamo was handled. One of them, he says, was not to involve the international community though the detainees posed a threat to the world.

"Because Guantanamo was set up initially solely as a U.S. operation, we have allowed other countries to distance themselves from Guantanamo," he says. "They don't acknowledge that, in fact, there is a benefit to the individuals who are being held there.

"That really has been one of the unfortunate byproducts of Guantanamo."

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