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Where Do Detainees Go When Guantanamo Closes?
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Where Do Detainees Go When Guantanamo Closes?



President-elect Barack Obama made clear this week that he intends to keep his campaign pledge to close the prison at the U.S. naval base in Guantanamo Bay, Cuba.

President-elect BARACK OBAMA: I don't want to be ambiguous about this. We are going to close Guantanamo, and we are going to make sure that the procedures we set up are ones that abide by our Constitution. That is not only the right thing to do, but it actually has to be part of our broader national security strategy because we will send a message to the world that we are serious about our values.

NORRIS: The president-elect was speaking there during an interview Sunday morning on ABC. Obama is expected to issue an executive order, possibly on his first full day in office, to close the prison that houses suspected terrorist picked up mostly on the battlefields of Afghanistan and Iraq.

But closing Guantanamo is not as easy as freeing the prisoners and turning out the lights. It's far more complicated than that. And so this week, we're holding a series of conversations about why shutting Guantanamo down is so complicated, and what options are open to the Obama administration as it formulates a new policy toward the so-called enemy combatants.

Today, we hear from Scott Silliman. He's a professor of law at Duke University and the executive director of the Center on Law, Ethics and National Security. He joins us from Durham, North Carolina. Professor, thank you so much for being with us.

Professor SCOTT SILLIMAN (Law, Duke University; Executive Director, Center on Law, Ethics and National Security): It's a pleasure to be with you, Michele.

NORRIS: How complicated is this going to be? What are the biggest obstacles that will prevent the swift closure of Guantanamo?

Professor SILLIMAN: The major problem, Michele, is what do we do with those detainees that are currently at Guantanamo Bay? If, in fact, you close it, you've got to find a place to put them. You can put them in the United States. You can hopefully move them to other countries. But so far, neither one of those options has really worked.

NORRIS: U.S. lawmakers in some of the states that might possibly hold the detainees have said that they don't want them here. If the new administration finds that it's difficult to find a partner overseas, might they have to look at a U.S. location?

Professor SILLIMAN: Well, that's a possibility, Michele, and a couple of options have already surfaced. There's a Supermax prison in Colorado, and Fort Leavenworth in Kansas. But again, when you bring them into the United States, I think it's arguable that Congress would have to specifically pass a law authorizing it. There are security interests. Some of these folks are very, very dangerous, and if they weren't dangerous when we put them in to Guantanamo Bay, when we bring them out seven years later, they are more dangerous now. So, I'm not sure that that's clearly a good option, if an option at all.

NORRIS: The administration plans to direct a team to examine each case to determine which of the detainees can be released and which of them must be held in another location, location yet to be determined. How long will that process take, and how do they determine who's worthy of release?

Professor SILLIMAN: It's going to take a long time. The process of closing it will probably take eight to 10 months at the earliest. You have got to go case by case, make an evaluation on first, whether that terrorist is subject to criminal charges. And in that case, you are going to have to prosecute him in some kind of a forum, probably not a military commission.

But there are those for whom there is no evidence of a crime and yet, they are dangerous. And they've got to make a decision: Should they be released, or should they continue to be held? And it's going to be a slow process.

NORRIS: So it sounds like we're not just talking about closing Guantanamo, we're talking about making real adjustments in the U.S. legal system, the military legal system.

Professor SILLIMAN: That's correct. Obviously, the courts, over the last four years, have dealt the Bush administration several defeats. The Supreme Court has told the Bush administration these detainees have legal rights that can be heard in our federal courts, and they are being heard right now. The issue is, when you move them to some other country, then that issue goes away. But if you put them anywhere else - in Bagram Airbase in Afghanistan - the same issue of their legal rights stays alive and well, and it's a difficult one for the new administration to deal with.

NORRIS: President-elect Obama is a man who uses words very carefully. He's a trained lawyer. If you listen to what he said this Sunday in that interview, he said, we're going to close Guatanamo. And we're going to make sure that the procedures we set up are ones that abide by our Constitution. So he's acknowledging that there are certain limits and obstacles. What are the biggest obstacles they face?

Professor SILLIMAN: Well, again, what he's saying is what the courts have already ruled - that if we are holding folks at Guatanamo Bay, that we must accord them the opportunity to come into our federal courts and challenge that detention. So I think President-elect Obama is basically reaffirming that never again will we be a pariah of the international community by denying folks the right to challenge their detention. And so that will hopefully allow us to have more cooperation from those countries that are yet to accept back their citizens.

NORRIS: Scott Sillliman is a professor of law at Duke University, and he's the executive director of the Center on Law, Ethics and National Security. He joined us from Durham, North Carolina. Professor Silliman, always good to talk to you. Thanks so much.

Professor SILLIMAN: Thank you, Michele.

NORRIS: And our discussions on the closure of Guantanamo Bay continue tomorrow. We'll examine how the U.S. might prosecute some of the Guantanamo detainees.

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