The Obama administration is looking at creating a courtroom-within-a-prison complex in the U.S. to house suspected terrorists, combining military and civilian detention facilities at a single maximum-security prison.
Several senior U.S. officials said the administration is eyeing a soon-to-be-shuttered state maximum security prison in Michigan and the 134-year-old military penitentiary at Fort Leavenworth, Kan., as possible locations for a heavily guarded site to hold the 229 suspected al-Qaida, Taliban and foreign fighters now jailed at the Guantanamo Bay detention camp in Cuba.
The officials outlined the plans — the latest effort to comply with President Barack Obama's order to close the prison camp by Jan. 22, 2010, and satisfy congressional and public fears about incarcerating terror suspects on American soil — on condition of anonymity because the options are under review.
Best among bad options
White House spokesman Ben LaBolt said Friday that no decisions have been made about the proposal. But the White House considers the courtroom-prison complex as the best among a series of bad options, an administration official said.
For months, government lawyers and senior officials at the Pentagon, Justice Department and the White House have struggled with how to close the internationally reviled U.S. Navy prison at Guantanamo.
Congress has blocked $80 million intended to bring the detainees to the United States. Lawmakers want the administration to say how it plans to make the moves without putting Americans at risk.
The facility would operate as a hybrid prison system jointly operated by the Justice Department, the military and the Department of Homeland Security.
The administration's plan, according to three government officials, calls for:
- Moving all the Guantanamo detainees to a single U.S. prison. The Justice Department has identified between 60 and 80 who could be prosecuted, either in military or federal criminal courts. The Pentagon would oversee the detainees who would face trial in military tribunals. The Bureau of Prisons, an arm of the Justice Department, would manage defendants in federal courts.
- Building a court facility within the prison site where military or criminal defendants would be tried. Doing so would create a single venue for almost all the criminal defendants, ending the need to transport them elsewhere in the U.S. for trial.
- Providing long-term holding cells for a small but still undetermined number of detainees who will not face trial because intelligence and counterterror officials conclude they are too dangerous to risk being freed.
- Building immigration detention cells for detainees ordered released by courts but still behind bars because countries are unwilling to take them.
Each proposal, according to experts in constitutional and national security law, faces legal and logistics problems.
Jury selection dilemmas
Scott Silliman, director of Duke University's Center on Law, Ethics and National Security, called the proposal "totally unprecedented" and said he doubts the plan would work without Congress' involvement because new laws probably would be needed. Otherwise, "we gain nothing — all we do in create a Guantanamo in Kansas or wherever," Silliman said.
"You've got very strict jurisdictional issues on venue of a federal court. Why would you bring courts from all over the country to one facility, rather than having them prosecuted in the district where the courts sit?"
Legal experts said civilian trials held inside the prison could face jury-selection dilemmas in rural areas because of the limited number of potential jurors available.
One solution, Silliman said, would be to bring jurors from elsewhere. But that step, one official said, could also compromise security by opening up the prison to outsiders.
It is unclear whether victims — particularly survivors of Sept. 11 victims — would be allowed into the courtroom to watch the trials. Victims and family members have no assumed right under current law to attend military commissions, although the Pentagon does allow them to attend hearings at Guantanamo under a random selection process. That right is automatic in civilian federal courthouses.
"They'll have to sort it out," said Douglas Beloof, a professor at Lewis and Clark Law School in Portland, Ore., and expert on crime victims' rights. He said the new system "could create tension with victims who would protest."
Uncertainty on numbers
The officials said that another uncertainty remains how many Guantanamo detainees would end up housed in the hybrid prison.
As many as an estimated 170 of the detainees now at Guantanamo are unlikely to be prosecuted. Some are being held indefinitely because government officials do not want to take the chance of seeing them acquitted in a trial. The rest are considered candidates for release, but the U.S. cannot find foreign countries willing to take them. Almost all have yet to be charged with crimes.
Two senior U.S. officials said one option for the proposed hybrid prison would be to use the soon-to-be-shuttered Standish maximum-security state prison in northeast Michigan. The facility already has individual cells and ample security for detainees.
Getting the Standish prison ready for the detainees would be costly. One official estimated it would cost over $100 million for security and other building upgrades.
Support not unanimous
Several Michigan lawmakers, including Senate Armed Services Chairman Carl Levin and Rep. Bart Stupak, both Democrats, have said they would be open to moving detainees to Michigan as long as there is broad local support.
But the political support is not unanimous. Michigan Rep. Pete Hoekstra, top Republican on the House Intelligence Committee who is seeking the GOP nomination for governor next year, is against the idea.
Administration officials said the U.S. Disciplinary Barracks at Fort Leavenworth is under consideration because it is already a hardened high-security facility that could be further protected by the surrounding military base.
It's not clear what would happen to the military's inmates already being held there. Nearly half are members of the U.S. armed forces, and by law, cannot be housed with foreign prisoners.
Opposition from Leavenworth community
Kansas' GOP-dominated congressional delegation is dead set against moving Guantanamo detainees to Leavenworth. Residents told Sen. Pat Roberts, R-Kan., at a town hall meeting in May that 95 percent of the local community opposes it.
Administration officials say they are determined to keep to his promise of closing Guantanamo in January as a worldwide example of America's commitment to humane and just treatment of the detainees.
Glenn Sulmasy, an international law professor at the U.S. Coast Guard Academy in New London, Conn., said the prison-court complex will "be difficult, but it's logical."
"This is all based on Closing Gitmo by 2010, which seems to be a priority, and if we are going to do it, we have to step up to the plate and find solutions to the conundrum we're facing," said Sulmasy, who agrees with the administration's efforts. "And this seems to be the most pragmatic way ahead."