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KORVA COLEMAN, host:

I'm Korva Coleman, and this is Tell Me More from NPR News. Michel Martin is away. Coming up, slam poet Gayle Danley takes us for an emotional ride you will not want to miss.

But first, President-elect Barack Obama has described the Guantanamo Bay prison as a sad chapter in American history and throughout his campaign promised to close it down. Some 250 people are detained at the U.S. naval base on the southeastern coast of Cuba, and many have been held with no charges for nearly seven years since first being detained as suspected terrorists.

The Bush administration has had trouble justifying the detentions. Last week, a federal judge in Washington ruled five detainees were being held unlawfully and ordered them freed. A military judge threw out a confession by an Afghan national because it was obtained through torture or coercion. The young man was a teenager when he allegedly threw a grenade at two soldiers and injured them. For the incoming administration, the question seems to be not whether to close the prison down but how to do it.

Joining us now to discuss possible frameworks for that plan are Matthew Waxman, an associate professor at Columbia Law School and a former deputy assistant secretary of defense for detainee affairs. He joins us from Columbia. Welcome, Professor Waxman.

Professor MATTHEW WAXMAN (National Security and International Law, Columbia Law School; Former Deputy Assistant Secretary of Defense for Detainee Affairs): Thanks very much for having me.

COLEMAN: We also have Glenn Sulmasy, a military lawyer and professor of law at the U.S. Coast Guard Academy. He's at member station WNPR in Fairfield, Connecticut. Hello, Professor Sulmasy.

Professor GLENN SULMASY (Law, U.S. Coast Guard Academy): Hello. How are you? Thanks for having me, Korva.

COLEMAN: Welcome to the program. First, Professor Waxman, there are those who say closing Guantanamo will be a big mistake, and that's because we will free very dangerous people who will plot to harm the United States again. Should that be our first concern?

Prof. WAXMAN: Well, it really depends a lot on how closing Guantanamo is done. As you said, the new president-elect has made clear his intention to close it. And I think that's the right thing to do, and if it's done right, it's going to send a message that we're turning a page and putting our counterterrorism policy on a sounder footing for the long term. It's critically important that we retain a strong capability to detain and interrogate suspected terrorists, but Guantanamo policy as it's been shaped so far has really come at a tremendous cost, including a cost of friction with our allies and erosion of our reputation and credibility when it comes to promoting certain legal principles. So I think we need to turn that around.

COLEMAN: Professor Waxman, that sounds like it's in the future, though. I'm talking about the people we're holding right now.

Prof. WAXMAN: Well, that's right. I mean, there remain about 250 people at Guantanamo, down from a one-time population total of around 800. Some of those individuals can be sent home to their country of origin under assurances that those countries will take responsibility for them. Some of them may be prosecuted in either federal courts or military courts. But the new administration may face a difficult dilemma if it finds that there are cases of very dangerous individuals who can't be prosecuted for one reason or another and who are too dangerous or can't be sent home to their country of origin.

COLEMAN: Professor Sulmasy, over the weekend, the New York Times editorial page wrote the chance of setting terrorists free is basically the price the United States pays for the boneheaded incompetence that President Bush - how he handled the detainees in the first place. Do we take that risk?

Prof. SULMASY: I think it is a risk worth taking if done properly. I don't necessarily agree with that it was boneheaded policies or the specifics of the Times piece, but I do think we're learning how to deal with this new threat, which is relatively new; it's seven years. And I think President-elect Obama has taken very pragmatic approach to date. And after his team gets settled in, he'll be able to actually affect some of these changes. I do agree with the tenent and sort of what Matthew says, as well, Korva, is that we need to try these people. I think any sort of a new regime we set up, any sort of legal system, has to be presumptively adjudicatory. I don't agree that we should have a system where we keep a few people for the duration of the hostilities or for a long period of time just for intelligence purposes. There has to be some reasonable accommodation to meet those needs as well as ensuring we uphold the rule of law.

COLEMAN: Professor Sulmasy, it sounds to me like you're saying we should not keep people in preventative detention for a long time. Professor Waxman, what are some alternatives that we could look at?

Prof. WAXMAN: Well, Professor Sulmasy is right that the best option, the best outcome for those who are too dangerous to release is prosecution, and I think that's going to be the emphasis of the new administration. But I also think the new administration, as it takes a close look at the detainees case by case, is going to find a number of tough obstacles to prosecution in federal court. These are obstacles related to securing witnesses, the need to protect sensitive intelligence sources and methods, and in some cases, because evidence may be tainted by mistreatment. So we certainly need to look at other options besides prosecution. One of those will be to send detainees, like I said, home to their country of origin and - but until we - until the new administration goes through them and reviews the cases one by one, I think it should proceed cautiously.

COLEMAN: Professor Sulmasy, again, the Times editorial piece listed a number of steps - actually, from Human Rights Watch - to deal with detainees in Guantanamo Bay. You mentioned that you don't agree with all the tenents, some of those included, say, the transparency of the process, something that Professor Waxman just mentioned, repatriating some of the detainees. Are there things you did not agree with?

Prof. SULMASY: I think that some of that is correct. I'm talking about the tenor and referring to the administration's actions as being boneheaded and foolish and arbitrary. I think the reality is that there were mistakes made, but I think that the administration was acting in the best - amongst the best information they had. They were proceeding forward as best they could. Does that mean that we shouldn't move forward now with a new sense of priorities with the new administration? Of course we should.

But I do think the predominant tenent that's discussed in the Times article that you are referring to, Korva, really is that preventative detention as a tenent in any new scheme or what we do with these folks should not be permitted or be allowed. If we do want to have some sort of a system, a hybrid system, if you will, between our Article III courts and our military commissions, some sort of a national security court or national security court system, that seems to accomplish and accommodate both goals - as long as any sort of a new system like a national security court is set up and devised as a trial court, not as a means to try to just keep people indefinitely.

COLEMAN: Why do we need this hybrid system?

Prof. SULMASY: I think the...

COLEMAN: And is this hard to do?

Prof. SULMASY: I think it could be difficult but certainly not insurmountable if we want to do this right. One of the concerns I have, Korva, is as the military commissions have not succeeded, or not been successful, as most people, I think, informally would agree - including Secretary Gates and Secretary Rice, who have said to close Guantanamo, and clearly President-elect Obama wants to do that. We don't want to swing back too far the other direction in terms of using just purely our civilian courts.

If we were to do so, we would then be swinging the pendulum too far in the other direction, potentially, with having every person acquitted. What we want to look at is to try to find some reasonable accommodation or the middle ground or a third way to proceed. If it's constructed properly by Congress right now that is ready to act, I think we could do this within six months to a year.

COLEMAN: Professor Waxman, you have written recently that we could try some of these detainees in our criminal courts, and that is because some of the laws are very tough since 9/11. But can we try people under laws passed since 9/11 for crimes they may have committed on 9/11 or even prior to that?

Prof. WAXMAN: Actually, I think what you're referring to was a statement I made about improvements to our criminal law, as you say, since 9/11. I think going forward, criminal prosecution is a much more potent tool today than it was, let's say, on 9/11. Our criminal laws have been expanded in order to cover a greater range of terrorism crimes. Our Justice Department has ramped up its resources and infrastructure available to bring prosecutions, bring cases. And our justice system, our judges have gained valuable experience in managing some of the tough issues related to sensitive intelligence information. That's not to say that I think the federal criminal system is a complete solution, but I think it's stronger than it was, let's say, on 9/11 or soon thereafter.

COLEMAN: If you're just joining us, this is Tell Me More. I'm speaking to professors Matthew Waxman and Glenn Sulmasy about the incoming Obama administration and possible policy toward Guantanamo Bay Detention Center and the detainees there. Professor Sulmasy, we know that a number of the detainees really haven't done anything wrong, and the Bush administration has said so. They're still being held because we can't find a country to take them, or a country that they might go home to might abuse them. Should they be resettled here in the United States?

Prof. SULMASY: I think that will be something we should look at on a case-by-case basis, Korva. We should, however, continue diplomatic efforts to have those folks no longer detained if there is nothing that we have that says that these folks have committed crimes or intend to even engage in international terrorism. It seems anti-American in some ways and certainly against the tenents of our promotion of human rights, which has been our beacon of our government and its foreign policy for generations, that we should be overtly recognizing these people have done nothing, perhaps put them in a place that might be outside of the cells of Guantanamo while we continue to pursue diplomatic channels with other countries that would not treat them in that fashion. And I think the administration now, and I know for certain the incoming administration, will be pursuing those sorts of policies to kind of right any wrongs.

COLEMAN: Professor Waxman, something that Professor Sulmasy just touched on - has Guantanamo Bay damaged the United States' reputation internationally, and if so, in what way?

Prof. WAXMAN: I think it certainly has. I mean, Guantanamo was aimed at some important functions, like I said, incapacitating those who want to do us harm, collecting valuable intelligence. The way the Bush administration has gone about it has come at a high cost in terms of both our reputation in promoting certain legal principles and also just in creating some friction with our allies. I think over the long term, the way to combat terrorism is by building strong webs of cooperative relationships with our coalition partners, relationships built on military cooperation, intelligence cooperation, law-enforcement cooperation. And right now, I think Guantanamo has undermined our ability to strengthen those relationships.

COLEMAN: Professor Matthew Waxman joined us from the studios of Columbia Law School, where he's an associate professor. He's also a former deputy assistant secretary of defense for detainee affairs. And Professor Glenn Sulmasy, a judge advocate and professor of law at the U.S. Coast Guard Academy. He joined us from member station WNPR in Hartford, Connecticut. Professors, thank you for joining us.

Prof. SULMASY: Thanks very much.

Prof. WAXMAN: Thank you, Korva.

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