True North

With Boumediene rendering foreign detention moot, the usefulness of the prison at Guantanamo Bay appears to have outlived its legal usefulness.  Both presidential candidates have declared their intention to close Gitmo rapidly, which makes its fate clear in any case.  Why not shut it down now?  That’s the question that President Bush has begun considering, according to ABC News:

President Bush will soon decide whether to close Guantanamo Bay as a prison for al-Qaeda suspects, sources tell ABC News. High-level discussions among top advisers have escalated in the past week, with the most senior administration officials in continuous talks about the future of the prison camp at Guantanamo Bay–and how it will be dramatically changed and/or closed in the wake of the Supreme Court’s ruling that gave detainees there access to federal courts.

Sources have confirmed that President Bush is expected to be briefed on these pressing GTMO issues–and may reach a decision on the future of the naval base as a prison for al Qaeda suspects–before he leaves for the G8 on Saturday. An announcement, however, is not expected before he leaves the country.

High-level administration officials say the Court’s decision dramatically changes the legal landscape–and raises questions about whether the government has solid evidence to present to federal judges to justify ongoing detentions.

This could become Congress’ nightmare soon.  If Bush decides to close Gitmo, the US will have to decide what to do with the 260 or so detainees currently held in the facility.  Unless all of them get freed or returned to their native governments for prosecution, the US will have to find a new facility to hold them, and the Bush administration is most likely to put that burden on Congress after the years of heavy criticism Bush received for Gitmo.

None of the options look very palatable.  The detainees that remain have all been determined to be dangerous through military tribunal reviews.  Either they will have to receive trials in American courts with American civil legal standards in play — which would almost certainly wind up failing, given the circumstances of their detention, or Congress will have to establish a different standard that the Supreme Court would probably reject, as they did in Boumediene.  The other options are rendition or release.

Bush has his hands tied now.  Without any recognition of the military tribunals, there is no reason to hold these prisoners abroad.  If we have to apply law-enforcement standards such as Miranda rights to foreign terrorists captured abroad by military or intel personnel, we can’t bring them to the US just to see them get released in our cities.  Rendition looks like the most promising option, but that would almost certainly result in torture once the detainees return to places like Egypt and Saudi Arabia.

Closing Gitmo was always going to be the easy part.

Cross-posted at Hot Air.