Tough question for U.S. candidates: What to do with Guantanamo?

PAUL KORING

GUANTANAMO BAY NAVAL STATION, CUBA From Monday's Globe and Mail

Shy banana rats, the endangered Cuban hutia, have reclaimed Camp X-ray where "the worst of the worst" of al-Qaeda terrorists were once caged.

Giving Camp X-ray back to the rats was easy. Getting a grip on what to do about the rest of the U.S. military prison at Guantanamo Bay, Cuba, bedevils George W. Bush's administration and will outlast his presidency.

No matter that Camp X-ray was closed months after it opened in 2002, nor that hundreds of prisoners have been released or repatriated. No matter that Donald Rumsfeld, who dubbed Guantanamo detainees the "worst of the worst," has been dumped as U.S. defence secretary. Guantanamo remains a Kafkaesque twilight zone where even the acquitted may be imprisoned forever; a place where both the reputation of the United States and, perhaps, the masterminds of mass killing will go on trial. It's also emerged as a powerful symbol on both sides of the so-called global war against terrorism.

Even more than Abu Ghraib - the notorious prison in Iraq were U.S. soldiers abused prisoners - Guantanamo has become synonymous across the Muslim world with ill-treatment of detainees, despite vehement and repeated denials by a beleaguered Bush administration.

Nothing will erase the defining image of kneeling, blindfolded young Muslims, clad in orange jumpsuits, guarded by gun-toting Marines and dumped in chain-link cages topped by razor wire that has become emblematic of Guantanamo Bay.

At home, Guantanamo has spawned a legal labyrinth and become a litmus test for both Democratic and Republican presidential hopefuls as they race to replace Mr. Bush in the Oval Office.

The 2008 presidential race is heating up and contenders are already vying with each other in promising to shut down Guantanamo in a bid to rebuild the U.S. image abroad.

"Our legitimacy is reduced when we've got a Guantanamo that is open, when we suspend habeas corpus. Those kinds of things erode our moral claims that we are acting on behalf of broader universal principles," says Senator Barack Obama, one of the Democratic front-runners.

Another Democratic hopeful, New Mexico Governor Bill Richardson, vows that on "my first day as president, I would shut down Guantanamo" to restore U.S. moral authority.

"We all want to close Guantanamo," counters U.S. Secretary of State Condoleezza Rice. "The President, I think, would close Guantanamo tomorrow if someone could answer the question: And what will you do with the dangerous people who are there?"

The chorus of those who want to close Guantanamo now includes Defence Secretary Robert Gates and the American Civil Liberties Union.

Mr. Gates admits Guantanamo is so tainted that "no matter how transparent, no matter how open the trials, if they took place in Guantanamo ... they would lack credibility." The man who replaced Mr. Rumsfeld muses out loud about bringing the detainees to military brigs in the United States and putting them on trial in conventional military courts martial.

While most U.S. allies have also demanded Guantanamo be closed, Canada remains a notable exception, despite the fact a Canadian is among the high-profile detainees. "The closure of Guantanamo Bay is a U.S. matter," said Foreign Affairs spokesman Alain Cacchione.

But there may be no simple fix for the tarnished, tattered system of justice that the term Guantanamo now represents.

"I don't think there is a single grand solution because there are really several separate populations, each needing a different solution," said Muneer Ahmad, an American University law professor and one of a cadre of lawyers who have spearheaded the defence of detainees at Guantanamo and challenged the legality of the tribunal system.

"The reality is there are people at Guantanamo we would like to turn back to their home countries, and their home countries won't take them," Mr. Gates has said.

Offering them refuge in the United States seems a political non-starter and most countries - even those with credible records of welcoming refugees, including Canada - have ignored Washington's effort to place them.

A second tranche - detainees deemed too dangerous to be released but unlikely ever to be charged, possibly because of a lack of admissible evidence - poses a different problem. They could languish in limbo, perhaps indefinitely, as prisoners of war in a war without end.

"How do you declare an end to the war on terror?" the White House was asked this week.

"I don't know," was the frank admission by Mr. Bush's spokesman Tony Snow.

Of the third and smallest group - those who might merit Mr. Rumsfeld's "worst of the worst" description, such as the al-Qaeda leaders and Osama bin Laden's key henchmen - none have yet been charged.

If and when they are put on trial, a shabby, former airport terminal on a remote patch of Cuban territory hardly seems the appropriate place.

Tough choices, all of them flawed, confront the administration. After years of trying and failing to get trials under way, the latest effort was skewered when military judges tossed out two of the first cases before they even began.

One of them involved Canadian Omar Khadr. For rights groups in the United States, he has become a poster child for all that is wrong with the Bush administration's effort to put terrorists on trial.

Mr. Khadr, only 15 when he tossed a grenade at the end of a fierce gun battle in 2002, is accused of murder because he didn't wear a uniform or fight for an internationally recognized country when he killed a U.S. marine.

The latest effort to try Mr. Khadr in the Bush administration's controversial terrorist tribunals went awry when the judge dismissed the charges because Mr. Khadr had been declared an enemy combatant, but not an "unlawful" one as required.

The Pentagon's insistence that it can re-label Mr. Khadr as "unlawful," and thus put his trial back on track, now seems almost inconsequential among the larger issues looming.

The whole sweeping array of methods by which the Bush administration handles terrorist suspects, from indefinite detention to brutal interrogation to secrecy and loaded trial rules, are in the dock.

"The system as a whole doesn't comply with international law nor the values of most Americans, and abroad it is perceived as fundamentally lawless," said Jameel Jaffner, of the American Civil Liberties Union.

"Rather than attempt to prop up the ailing commissions, the Bush administration should at long last retire them."

But even bringing the trial onshore, perhaps to federal court, perhaps to military courts martial, won't solve the larger problem. Of the nearly 400 detainees still at Guantanamo, only a few dozen, maybe even fewer, will even face charges.

Ever since last year, when 14 so-called "high-value" terrorist suspects were moved from secret offshore prisons to Guantanamo, expectations have grown that key al-Qaeda leaders, not just minor foot soldiers in the jihad, were to go on trial.

But those expectations are fading. Nearly six years after Sept. 11, 2001, no major al-Qaeda figure has been tried.

Yet among those now at Guantanamo are Khalid Shaikh Mohammed, the alleged mastermind of the Sept. 11, 2001, attacks, and Abu Zubaydah, who is believed to have secretly escorted Osama bin Laden out of Afghanistan.

At Nuremberg, "they tried the right people and they did it the right way," said Mr. Ahmad. At Guantanamo, the tribunals are "trying small-potato detainees with a vastly degraded system. If they put Khalid Shaikh Mohammed on trial, then at least people would be able to judge" the broader legitimacy of the process.

Of the roughly 400 detainees currently at Guantanamo (more than 100 were either released or repatriated into custody to various countries last year), nearly 100 have been cleared for release.

Many of them have nowhere to go because their home countries either don't want them or because it is feared they would be tortured or killed if sent home.

They await refuge of the sort that sent five Chinese Muslims to Albania last year. Another 15 Uyghurs who also face persecution in China are among scores of cleared detainees with no place to go.

Yet in spite of the rising chorus, both at home and abroad, to shut down Guantanamo, there are still a few discordant voices.

And given the lack of agreement on what would replace it, those voices still ring fairly loud.

"I'm glad they're at Guantanamo," says Republican presidential contender and former Massachusetts governor Mitt Romney. "I don't want them on our soil. I want them in Guantanamo where they don't get the access to lawyers they get when they're on our soil. I don't want them in our prisons.

"I want them there. Some people have said we ought to close Guantanamo. My view is we ought to double Guantanamo."

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