Page last updated at 10:18 GMT, Monday, 8 December 2008

Guantanamo dilemma looms for Obama

By Jonathan Beale
BBC News, Guantanamo Bay

An air of uncertainty hangs over Guantanamo Bay.

In just over a month, a new president will enter the White House promising to close down the detention camp that human rights groups have called the "gulag of our times".

Guantanamo Bay priosn at sunrise, 19n November
Some 250 inmates remain at the US jail in Guantanamo

But on this, my third, visit to this small strip of land on the island of Cuba that flies the stars and stripes, it seems as nothing much has changed. True, some detainees have been released but around 250 remain. There is no sign that the watch-towers and razor wire fences are about to be torn down. In fact, the opposite - it is business as usual.

I am among around 50 journalists from all over the world who have been flown in by the US military to witness the latest appearance in court of the alleged mastermind of the attacks on 11 September 2001, Khalid Sheikh Mohammed.

Khalid Sheikh Mohammed and his four co-defendants will appear in front of a military judge in a pre-trial, or motions, hearing and, in one sense, it does feel as if the Bush administration is going through the motions.

This is a trials process - called military commissions - that has been condemned in US federal courts and all over the world.

President-elect Barack Obama is just one of many to criticise the trials process, the interrogation techniques used to extract confessions and the treatment of detainees. This trial may never go ahead in its current form.

Yet, in its final few days, the Bush administration appears to have upped the ante.

Face to face

For the first time, the US military has invited the relatives of some of those who were killed in the attacks on 11 September to witness the proceedings. Representatives from five of the families who lost loved ones will be able to sit behind a glass screen in court, just feet away from those accused of committing mass murder.

I hope they stare us in the face and we stare back
Maureen Santora
Mother of 9/11 victim

One can only speculate as to why now. Is this a final chance for the Bush administration to remind the rest of the world about the reason for Guantanamo, the reason for these trials?

It is clear that some of those still grieving are still waiting for justice. More than 100 families applied by lottery for a seat in court. Maureen Santora, who lost her son Christopher in the attacks on New York's Twin Towers, is one of the few who will be able to see the men accused in the flesh. She has said: "I hope they stare us in the face and we stare back."

This hearing will also give Khalid Sheikh Mohammed a chance to question the proceedings. Much to his defence team's consternation, he has chosen to represent himself.

In his first appearance in court six months ago he showed little remorse for the attacks on 9/11. On the contrary, he was happy to be seen as the mastermind.

There are still plenty of questions as to how the Americans extracted any confessions. The CIA has admitted that he was one of the so-called "high value detainees" subjected to waterboarding, or simulated drowning.

On Monday he will only have a chance to question the proceedings of the court, not his treatment. But it is another chance to show his defiance and his hatred of America.

That and and the relatives' anger and grief will only intensify the questions about what happens next and for Barack Obama these will not be easy decisions.

Obama's options

Vijay Padmanabhan was until recently a legal advisor working at the US state department dealing with Guantanamo.

He knows that closing it is easier said than done. He acknowledges that the military commissions have been, in his words, "an abject failure".

Only three trials have been completed. Most have been held up in a legal quagmire. But the alternatives for an Obama administration are hardly appealing.

Transferring dangerous men (and admittedly the Pentagon acknowledges that not all of them are) to the US mainland to be tried in federal courts or by military courts martial would prove highly controversial. The reaction back home is likely to be "not in my back yard".

Returning them to their countries of origin also has a high degree of risk. Many come from states that are unstable or repressive. They could face torture or return to the battlefield.

Vijay Padmanabhan, who now teaches at New York's Cardozo Law School, says there are no quick-fix solutions.

He adds that he will be "shocked" if Guantanamo is closed by this time next year, such are the obstacles facing Barack Obama.

The president-elect along with much of the world may look on the current military commissions process as a travesty of justice, but what can he do to convince those families of the victims of 9/11 that justice will be done?

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