Most of the prisoners convicted of terrorism crimes in the Guantanamo tribunals are free men today while most of the Guantanamo captives cleared for release in the regular U.S. courts are still imprisoned at Guantanamo.
The patchwork system for determining the fate of Guantanamo prisoners is, as President Barack Obama said in a speech on Thursday, "quite simply a mess."
But, barring guilty pleas, it will be nearly impossible to complete any more trials at Guantanamo while sticking to Obama’s order to shutter the detention camp in Cuba by January 22.
The Guantanamo trials formally known as military commissions have been frozen until September 20 to give the Obama administration time to tweak the rules.
That leaves four months until the Guantanamo prison is scheduled to close, and whatever new rules Obama persuades Congress to adopt are likely to raise new legal challenges that cannot be resolved within that time frame.
"You’re going to be litigating in a brand new system where things have to be tested for the first time," said Michael Berrigan, deputy chief defense counsel for the Guantanamo trials.
"There’s really no way, even if the judges try and expedite the litigation, that you’re going to have all that stuff briefed and resolved … I wouldn’t bet they’re going to get any trials done through to completion by the time the year is up," Berrigan said.
Of the 14 cases pending when the tribunals were frozen, only two were anywhere near to being ready for trial, and some of the evidentiary issues in those cases would have to be litigated anew under Obama’s plan to restrict the use of hearsay evidence and coerced evidence.
The widely criticized Guantanamo tribunals were authorized by President George W. Bush after the September 11 attacks of 2001 to try foreign terrorism suspects outside the regular civilian and military courts.
The Pentagon planned to try 80 prisoners at Guantanamo. But because of constant legal challenges and revisions in the system only three cases have been resolved — one with a guilty plea, one in a contested trial and one in a trial where no defense was presented.
DUCT TAPE WON’T HELP
Two of the Guantanamo convicts were relatively small fish who served sentences of only a few months and are free today, one in Australia and one in Yemen. The third, al Qaeda media secretary Ali Hamza al Bahlul, is still at Guantanamo serving a life sentence with no indication where he will go when Guantanamo closes.
Human rights advocates say revising the system yet again is a mistake and it’s time to move the cases into the regular courts.
"It is a system so broken, so discredited, that it cannot be saved by any amount of administrative or legislative duct tape," said Amnesty International’s executive director Larry Cox.
It’s also unlikely the U.S. Supreme Court will act by the January shut-down date to break the logjam over what to do with Guantanamo prisoners whom the lower courts have found to be wrongly held in a war that could last forever.
The Supreme Court ruled last year that the Guantanamo prisoners have the right to contest their detention in the U.S. federal courts. So far those courts have upheld detention for five prisoners and ordered 25 others freed because the government could produce no evidence that they were a danger to America or its allies.
Twenty-one of the 25 are still at Guantanamo because the United States refuses to accept them, hasn’t persuaded any other country to accept them and can’t send them home because of fears they will be persecuted in their homelands.
A federal judge ordered that some of them, 17 Chinese Muslims of the Uighur minority, be freed in the United States. But an appeals court ruled in April that judges don’t have authority to give such an order.
"Although the court can decide he’s being held unlawfully, it can’t actually order his release from Guantanamo," is how ACLU attorney Ben Wizner summed up the ruling.
The U.S. Supreme Court is expected to decide in June whether to hear an appeal by the Uighurs. If it accepts the case, it would not hear arguments until the next session begins in October, making a ruling unlikely before the January deadline to shut Guantanamo.
(Editing by Jim Loney and Cynthia Osterman)