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Closing Guantanamo easier said than done

Prisoners in Guantanamo Bay in 2002

By Paul Reynolds
World affairs correspondent, BBC News website

US President Barack Obama's promise to close Guantanamo Bay a year after taking office is proving more complex to achieve in practice than it was to announce in principle.

The task force he set up to make recommendations has issued an interim report, but has given itself another six months in which to make its final report.

A second panel examining the use of interrogation methods has a further two months.

The six-month extension (allowed for in the original executive order) will bring the final report perilously close to the 22 January 2010 deadline, the anniversary of the presidential order for the camp's closure.

Close-run thing

It would be wrong to conclude that the president's promise will not be achieved.

It would be right to conclude that meeting the target could be a close-run thing.

Prison block at Guantanamo Bay on 5 December 2006
Mr Obama says Guantanamo has damaged US global moral standing

And it is also clear that the future structure of measures to deal with terrorist suspects will not be the clean break with the past advocated by human rights groups like the American Civil Liberties Union, which simply wants all suspects tried in federal courts.

Instead, a mixed picture is emerging.

One key feature apparent so far is that military tribunals or commissions will continue.

This is made clear in the interim report, most of which is devoted to how such reformed tribunals should work.

But there is also a commitment that the first choice will to be to take a case to a criminal court if possible.

Decisions on this will depend on criteria laid out, for the first time, in an annex to the report, including "the nature of the offences" and the protection of intelligence.

The principle laid down in the interim report is that "justice cannot be done... unless those who are accused of crimes are proved guilty beyond a reasonable doubt in a court of law that affords them a full and fair opportunity to contest the charges against them".

'Battlefield realities'

What has not been addressed is what should happen to prisoners who face neither court nor tribunal. Should they be detained indefinitely? What safeguards should apply?

Guantanamo guards with a detainee on 11 January 2002
The prison was opened after the 9/11 attacks on the US

Such detentions are bound to be challenged and one reason behind the delay in addressing these problems is the desire to come up with solutions that would avoid such legal complications in future.

As for the tribunals, the Obama administration broadly agrees with the reforms proposed by the Senate Armed Services Committee to the law establishing the tribunals (itself the result of the Supreme Court saying that a presidential fiat was not enough).

These reforms include a legal prohibition on the use of statements obtained by "cruel, inhuman or degrading treatment". Another is to ensure that the offences charged are to do with the laws of war.

The report justifies the continued use of military commissions by arguing that they take into account the "realities of the battlefield".

For example, it questions the concept of soldiers being required to read a captured prisoner his "Miranda" rights, allowing him the right to silence and a lawyer.

Administration officials briefing reporters denied that they were bogged down and said they wanted a "durable and effective" framework.

Much less is known about the work of the second team. This is looking at whether the ban imposed by President Obama on methods other than those in the Army Field Manual, which prohibits torture and other harsh treatment, allows the CIA to do its job effectively.

This second panel has not issued any interim report and the delay in its final report indicates perhaps there are disagreements about whether to grant the CIA greater latitude in interrogation methods.

Meanwhile, a third task force is looking at how to deal with the cases of the remaining 229 Guantanamo Bay prisoners and is on track to report in October.

Officials say that about half the cases have been reviewed and that over 50 might be transferred abroad to countries willing to take them, with a further group likely to face prosecution.

Paul.Reynolds-INTERNET@bbc.co.uk



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