MICHELE NORRIS, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
MELISSA BLOCK, host:
And I'm Melissa Block.
Today, we're exploring the issue of where the Obama administration will hold terrorism detainees who are picked up overseas. Today, on MORNING EDITION, NPR's Ari Shapiro described some of the obstacles to holding people in the U.S. or Afghanistan. Now, he reports that government lawyers are exploring more creative options.
ARI SHAPIRO: Virtually everyone interviewed for this story agreed. The United States would rather not be in the terrorist detention business. There are military, diplomatic, legal and political obstacles, no matter which option the government chooses. Columbia Law Professor Matthew Waxman handled detainee affairs at the Pentagon under President Bush.
Professor MATTHEW WAXMAN (Law, Columbia Law School): The big question mark is what is the Obama administration going to do with individuals who are captured in the future outside of combat zones like Afghanistan.
SHAPIRO: In the Bush administration, some of those detainees were housed in secret CIA prisons in foreign countries, known as black sites. President Obama closed those prisons, and when I asked the CIA whether they might ever reopen, spokesman Paul Gimigliano said, having this agency hold dangerous figures overseas, as was done before, is not an option. What the press came to call black sites are things of the past, he said. There is another option the Bush administration used that President Obama has said he will continue: rendition. In late August, President Obama's interrogation and transfer policy task force said the administration would continue sending terrorists to foreign countries as long as those governments promised not to torture detainees.
Cardozo Law Professor Vijay Padmanabhan was an attorney adviser at the State Department in the Bush administration. He says the Obama State Department is playing a major role in finding places to put terrorists.
Professor VIJAY PADMANABHAN (Law, Cardozo School of Law): They are looking to the other countries in the world, to their allies, to do more with respect to the long-term resolution of particular detention cases. So we've seen in the Horn of Africa - or the Kenyans, for example, have been called upon to detain and prosecute people.
SHAPIRO: Those agreements have to be worked out on a case-by-case basis, and they can be difficult, says John Bellinger, who was legal adviser to State under President Bush.
Mr. JOHN BELLINGER (Former Legal Adviser, Bush Administration,): The international community doesn't accept the idea that individuals can be held without trial over a long period of time. So it's unlikely that we would be able to persuade other members of the international community, particularly those in Europe, to join in holding people for any significant period of time unless they were going to be tried.
SHAPIRO: So, if the U.S. picks up 20 al-Qaida members tomorrow, and they cannot be held in the United States, Cuba, Afghanistan, black sites or foreign countries, where will they go?
Mr. KEN ANDERSON (Hoover Institution): To be perfectly blunt, I don't think that they'll pick them up at all.
SHAPIRO: Ken Anderson of the Hoover Institution has written about these issues.
Prof. ANDERSON: I think that we've actually allowed the courts to arrange the incentives to kill rather than capture.
SHAPIRO: Many national security experts interviewed for this story agree. It has become so difficult for the U.S. to detain people, in many instances, the U.S. government is killing them instead. Just last month, American forces staged a raid on a car in Somalia. The man inside the car was a suspected terrorist on the FBI's most wanted list. American troops did not seize him. Instead, helicopters fired on the car, and commandos retrieved his body. University of Michigan law professor Monica Hakimi worked at the State Department in the last administration. She does not like the idea of long-term detention. But, she says, none of the alternatives seem much better.
Professor MONICA HAKIMI (Law, University of Michigan): The benefit of capturing them is that we might be able to get from them certain intelligence that we can then use to hunt down future terrorists. The cost is that once we capture them, it's not really clear what we're supposed to do with them.
SHAPIRO: President Obama put together a task force to try to answer these questions. It was supposed to finish its work in July, but as the deadline approached, the team said it needed another six months to work through these problems.
Ari Shapiro, NPR News, Washington.