What are the alternatives to Guantanamo?

A detainee is escorted by U.S. soldiers at the detention facility at Guantanamo Bay Naval Base in Cuba.
A detainee is escorted by U.S. soldiers at the detention facility at Guantanamo Bay Naval Base in Cuba.Brennan Linsley / AP
/ Source: msnbc.com

“Not in my backyard!”

That's the cry being heard about proposals to bring detainees at the Guantanamo Naval base to military prisons in Kansas, South Carolina, and Virginia.

One new location for the detainees suggested by Sen. Tom Harkin, D-Iowa, is the United States Disciplinary Barracks at Fort Leavenworth, Kansas.

In May, Harkin introduced a bill to close Guantanamo and named Fort Leavenworth as an alternative.

Not keen in Kansas
“Americans do not want terrorists in their backyard, and we do not need them in Kansas,” said Sen. Sam Brownback, R-Kansas, a GOP presidential contender. “Local residents have expressed concern about this mission, and the Department of Defense has not fully considered the preparations necessary to transition this mission to Fort Leavenworth."

Brownback added, “Given the investment we have made in a secure facility at Guantanamo, far away from U.S. residents, the administration needs to make a much more compelling case that a detainee transfer is a justifiable use of resources, that it can be completed safely, and that it can be done without significant impact on local communities."

Rep. Nancy Boyda, a first-term House Democrat who represents the congressional district which includes Fort Leavenworth, also rejected the Harkin proposal.

“I do not believe bringing terrorist detainees to Leavenworth County is a good idea. I'm not comfortable with this," Boyda told the Associated Press.

Former Bush White House associate counsel Brad Berenson testified to the House Judiciary subcommittee on the Constitution last week that bringing detainees to Fort Leavenworth "would put the citizens of Kansas at risk because immediately Fort Leavenworth becomes an accessible target to their confederates on the outside, an object of possible terrorist attack."

Another not-in-my-backyard reaction came from a Republican who represents the congressional district including the Navy Brig in Charleston, S.C.

“The Pentagon has stated that while the Naval Brig in North Charleston has the physical capacity to house these detainees, to do so would require significant security enhancements,” said Rep. Henry Brown. “To close Guantanamo and relocate hundreds of prisoners in the war on terror to the backyards of Charleston would be unconscionable."

Are Guantanamo's days numbered?
Despite the outcry, the days of the Guantanamo facility may be numbered.

The Supreme Court on Friday agreed to hear a challenge to last year’s law. It barred Guantanamo detainees from going to court to challenge their detention using the writ of habeas corpus.

Tom Goldstein, an attorney at the Washington law firm of Akin Gump Strauss Hauer & Feld who often argues cases before the high court, said that the Court’s unexpected decision to put Guantanamo on its fall docket “will spur the administration to close the detention facility …. The administration is going to see the handwriting on the wall, that the Supreme Court would not have stepped into this area if it didn’t believe there was a problem.”

Next week the House Appropriations Defense subcommittee, a key Congressional panel, will debate a provision to limit funding for Guantanamo as part of its vote on spending for the new fiscal year.

That panel, headed by Rep. John Murtha, D-Pa., could require closing of Guantanamo or a less drastic step such as putting a time limit on funding it.

Moran: U.S. barracks are secure enough
Rep. Jim Moran, D-Va., a member of the subcommittee, was dispatched to Guantanamo by Murtha a few months ago to investigate the feasibility of closing the detention center. Moran sent a letter Friday, cosigned by 140 House members, urging President Bush to shut the site.

“United States military barracks have the capability to provide for the secure detainment of foreign nationals while ensuring the safety of communities within their proximate geographic location,” Moran and his colleagues told Bush.

A Moran staff member said the Virginia Democrat believes it us up to the Bush administration to figure out where to relocate those held at Guantanamo. “He wants the administration to make the decision,” the staffer said.

The new site must be open and transparent, he said. “If you move people to Bagram (air base in Afghanistan) you create the same problem,” he said. From Moran’s point of view that is a lack of openness and transparency about the prisoners’ treatment.

Another complicating factor is the administration’s announced policy of according the detainees the protections in the 1949 Geneva Convention on treatment of prisoners of war.

That treaty says prisoners of war “shall not be interned in penitentiaries” except “in particular cases which are justified by the interest of the prisoners themselves.”

That means that the detainees would have to be kept separate from the U.S. convicts in a military prison or brig.

But it may be even more complicated than that.

Human rights advocates say some of the Guantanamo detainees were not picked up in an international armed conflict — so they are not legally prisoners of war or enemy combatants. What they need is the chance to convince a federal judge of this, advocates say.

While in Cuba, the detainees' right to seek habeas corpus is in dispute. Last February, the United States Court of Appeals for the D.C. Circuit upheld the law which bars Guantanamo detainees from seeking habeas corpus.

But Goldstein said that ruling is "in tension" with the Supreme Court's 2004 Rasul decision. But if detainees arrive in Kansas, their lawyers could go to federal court for a habeas corpus hearing to seek their freedom. The Robert J. Dole United States Courthouse in Kansas City could become the epicenter of the legal struggle over global terrorism.

Harkin’s communications director, Jennifer Mullin, said he and his staff “carefully researched the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas — a state-of-the-art, maximum security military facility —  and are confident that it has the capacity and security needed to house prisoners currently held on Guantanamo Bay.”

Harkin did not speak with Brownback and Boyda directly about his proposal before introducing his bill.

Harkin’s bill contains a provision that will provide Fort Leavenworth with funds to offset extra security and community costs.

The Iowa Democrat is willing to look at other proposals for relocation of the Guantanamo prisoners. But he "believes it is essential these prisoners be held in the continental United States where proper oversight can be conducted,” Mullin said.

Convincing the public
Democratic consultant Julian Mulvey said, “It’s not the location of the prison that’s the problem, it’s the fact that the Bush Administration can’t locate one of America’s most fundamental rights enshrined in our Constitution; the right of habeas corpus.”

But he said the president’s job of “selling” a new location or locations would be difficult, considering the administration’s damaged credibility.

“At this point, the bond of public trust on all issues relating to the war has been so totally demolished that if the Administration makes a case for anything — in their typical fashion — the majority of Americans are going to run the other way. They’ve wrecked their credibility on so many fronts,” said Mulvey.

It is essentially the same argument senators on both sides of the immigration debate cited last week in explaining why many Americans opposed the bill Bush supported: people lacked confidence in his administration’s ability to actually administer existing law, much less a new one.