The Center for American Progress released a new report yesterday on Guantanamo, anticipating a missed deadline and urging the administration to set a new deadline for July 2010. That's a good idea -- although from the administration's perspective, setting a new deadline might be a risky proposition, even given the virtual certainty that the prison will not close on time. The Obama administration may be able to hold Congress responsible for the delay this time around -- and Congress has played no small role in keeping Gitmo open -- but I doubt they would be able to use that excuse again if they missed a second deadline.
The report does include one recommendation that might be controversial: Transferring those detainees who lose their habeas cases to Bagram prison:
Waiting to send a Guantanamo detainee to Bagram until after his habeas case is resolved would forestall at least two concerns about sending them there: detainee access to counsel and the differing legal rights afforded detainees held at the two prisons. Sending Guantanamo detainees to Bagram while their cases are still pending would increase an already difficult burden on lawyers' access to their clients. Bringing them to the Washington, D.C. area would actually be a measurable improvement on the current situation. Even if a detainee loses his habeas case and is sent to Bagram, he would still be represented by counsel and possess the right to file a new habeas claim at a later date, but he would not need the kind of regular access to his attorney that is required now.
Guantanamo detainees possess the right to contest their detention through habeas corpus, and no decision to transfer those detainees could remove that right. Bagram detainees do not have habeas rights, however, and the Obama administration is fighting a U.S. district court decision that would extend habeas to those Bagram detainees that were brought to Afghanistan after being captured in other countries.58 Having no pending habeas cases for any Guantanamo detainees would be easier to manage from a practical perspective and simpler from a legal one.
The report continues, "[c]oncerns that Bagram would be perceived as the 'new Guantanamo' are legitimate, but this danger is outweighed by the benefits in this context," and concludes that legitimacy problems could be dealt with by reforming the detention system at Bagram, including adopting "a transparent and binding agreement with the Afghan government that formalizes U.S. detention authority and links the system to Afghan law." Some factions within the administration already seem interested in doing the latter. But I can't imagine that the lawyers representing detainees at Guantanamo would be happy with this kind of arrangement -- since it puts their clients far out of reach -- even if it helps close the prison faster. To my knowledge, not a single civilian lawyer for any detainee has ever set foot in Bagram.
-- A. Serwer
