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MARY LOUISE KELLY, host:

From NPR News, this is ALL THINGS CONSIDERED. Im Mary Louise Kelly.

MELISSA BLOCK, host:

And Im Melissa Block.

President Obama campaigned on a promise to close the prison at Guantanamo Bay, but his administration hasnt figured out what to do with all of the detainees there. And now the president has run into new complications.

A recent verdict has emboldened opponents of civilian trials for terrorism suspects, and power is shifting in Congress toward Republicans who share that opposition.

So a debate is on. Far from closing Guantanamo, momentum is growing for an official system in which suspects are held indefinitely.

NPR's Dina Temple-Raston explains.

DINA TEMPLE-RASTON: Last week, a New York jury nearly acquitted the man at the center of a terrorism trial the Obama administration had thought was a slam dunk. Ahmed Ghailani, a young Tanzanian, was charged with more than 280 counts of murder and conspiracy for his role in the 1998 embassy bombings in Africa. After five days of deliberation, the jury convicted him on a single charge of conspiracy.

Mr. BENJAMIN WITTES (Senior Fellow, Governance Studies, Brookings Institution): The jury came within one count of acquitting him entirely.

TEMPLE-RASTON: Ben Wittes is a senior fellow at the Brookings Institution.

Mr. WITTES: And had that happened, that would have put the government in an enormously difficult position. Because if you hold a trial and somebody is acquitted, it kind of violates our sense of what a trial is - to say, well, we're going to hold him anyway.

TEMPLE-RASTON: Hold him anyway, because the Justice Department had made clear that even if Ghailani or any high-profile terrorism suspects are acquitted, they would never go free.

Mr. JUAN ZARATE (Senior Adviser, Center for Strategic and International Studies): Im Juan Zarate, senior adviser at the Center for Strategic and International Studies.

TEMPLE-RASTON: Zarate, who also served as deputy national security adviser in the Bush administration, says that when prosecutors can hold someone behind bars - even without proving their case - criminal trials become show trials.

Mr. ZARATE: When the attorney general of the United States is asked what happens if Khalid Sheikh Mohammed or, in this case, Ghailani, is acquitted. And the answer, you know, for all intents and purposes, is he will remain in custody regardless of the verdict. That is a problematic answer in the context of the use of the criminal legal system.

TEMPLE-RASTON: If holding someone indefinitely as a fallback is a bad idea, there are only a couple of alternatives. One is to try suspects in a military commission, which operates under different rules. Another option is to imprison them without ever going to trial - to just hold them. Thats what lawmakers are looking at now.

Back in August, Senator Lindsay Graham of South Carolina quietly introduced a bill that would codify indefinite detention. He wanted to answer questions like what kind of enemy combatant could be locked up without trial; how much evidence would the government need?

Now, holding people indefinitely happens already. What would be new here are clear rules to govern that. It's possible President Obama, rather than close Guantanamo, might end up backing a law that holds detainees indefinitely.

Zarate says the Ghailani case shows the administration needs to define detention better than it has.

Mr. ZARATE: The decision may be crystallizing in certain ways, especially in the postelection environment. They may speak about it more publicly or more directly. But I think in many ways, they've already made this decision.

Ms. LAURA MURPHY (Director, ACLU, Washington): It's un-American to hold people forever without charge or trial.

TEMPLE-RASTON: That's Laura Murphy of the ACLU's Washington office. She worries that codifying indefinite detention will end up of legitimizing it. And she says it raises a number of questions. What if the detainees suspected of terrorism are actually innocent? What kind of system would there be to determine that? Would there be any kind of judicial review?

Benjamin Wittes of Brookings says in definite detention without rules, which happens now, should concern people more.

Mr. WITTES: If your concern is not legitimizing it, lying about it is a very strange way to do that. And right now, what we are doing as a society is lying to ourselves about the detention that we engage in.

TEMPLE-RASTON: Incoming House Judiciary Chairman Lamar Smith of Texas is working on a companion bill to Senator Graham's effort. Administration officials told NPR they didn't want to discuss the legislation before they see what's in it.

Dina Temple-Raston, NPR News, New York.

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