A Humvee from the Puerto Rico Army National Guard's, 480th Military Police Company, patrols the perimeter of the detention facility at Guantanamo Bay Naval Base, Cuba, Oct. 7, 2009

A Humvee from the Puerto Rico Army National Guard's, 480th Military Police Company, patrols the perimeter of the detention facility at Guantanamo Bay Naval Base, Cuba, Oct. 7, 2009

The administration plans to resume military trials at Guantanamo. New spending curbs by Congress helped derail President Obama’s pledge to close the prison. What’s next for Gitmo.


  • Jane Mayer Staff writer, "The New Yorker," author of "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals."
  • John Bellinger A partner with the law firm of Arnold & Porter and an Adjunct Senior Fellow at the Council on Foreign Relations, former legal adviser for the Department of State under Secretary of State Condoleezza Rice.
  • Kate Martin Director of the Center for National Security Studies


  • 10:06:54

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Two years ago, President Obama promised to close the prison at Guantanamo within a year. That did not happen. Gitmo has remained open. The White House is now poised to resume trials of detainees by military commissions. Joining me to talk about what this means for Gitmo and for the Obama administration here in the studio, Jane Mayer of The New Yorker, John Bellinger of the Council on Foreign Relations and Kate Martin of the Center for National Security Studies. I hope you'll join us as well. Call us on 800-433-8850. Send us your e-mail to drshow@wamu.org. Feel free to join us on Facebook or send us a tweet. Good morning to all of you.

  • 10:08:08

    MS. JANE MAYERGood morning.

  • 10:08:08

    MR. JOHN BELLINGERGood morning.

  • 10:08:08

    REHMAnd thanks for being here. Jane Mayer, why this policy change now?

  • 10:08:14

    MAYERWell, I guess, the -- basically, the Obama administration has lost control of the politics when it comes to Guantanamo. Two years later, there's a broken campaign promise, which was Obama's promise to close Guantanamo. And, instead, he is doing something that nobody really foresaw when he was elected, which is moving towards military trials and pretty much giving up on civilian trials it seems, even if -- though, not as a policy, but in actuality.

  • 10:08:45

    REHMHow do you see it, John Bellinger?

  • 10:08:48

    BELLINGERWell, surprisingly, the Obama administration has had its -- one of its signature initiatives of the early part of the term blocked by Congress. On the second day in office, President Obama, in January 2009, issued an executive order stating that he was going to close Guantanamo within a year. And then, lo and behold, within months, Congress -- including a majority of his own party -- blocked him from doing so. First, by blocking him from moving people from Guantanamo into the United States for detention and then, most recently, they've now slammed the door shut last week with the new defense authorization bill -- or actually a couple of weeks ago now -- stating that individuals in Guantanamo can't even be moved to the United States even for a federal trial.

  • 10:09:38

    BELLINGERSo it looks like Guantanamo now is not going to be closed. Congress has blocked the president from doing it. It's not just the Republicans, but even the Democrats as well.

  • 10:09:49

    REHMKate, was this pure politics? Or was it a measure of safety? What were some of the reasons?

  • 10:09:58

    MS. KATE MARTINWell, I think the congressional action has to be put down to pure politics because there's no rational argument about why bringing people from Guantanamo to the United States, either to be tried or to be in prison, would endanger the American people. But, I guess, I would disagree with my colleagues about where we are. I think that the Congress has put a temporary obstacle in the way of the president's plan to close Guantanamo. I don't see the plans to start military commission trials at Guantanamo as signaling a fundamental change in the president's policy. In the speech that he gave in April of 2009 at the National Archives, he said that the military commission trials were going to be one tool that he used to empty the prison.

  • 10:11:02

    MS. KATE MARTINThe Congress has temporarily -- you know, for this fiscal year -- made it impossible for him to bring people to prison here. It has made it probably impossible to actually start the civilian trial, but it has not made it impossible to prepare for civilian trials for Guantanamo detainees. And, in fact, in the same days that the Congress just did this, the attorney general said that they hope to go forward with civilian trials of Guantanamo detainees.

  • 10:11:35

    REHMOf course, it was interesting that Eric Holder, the attorney general, wanted to bring a trial to New York City. And there was a huge outcry, Jane.

  • 10:11:49

    MAYERHe was all set to put Khalid Sheikh Mohammed on trial in Manhattan. And I think it's a really sad state of affairs because I know that the prosecutors and the justice department have spent years preparing a -- what they feel is a fantastic case against Khalid Sheikh Mohammed. They want to put him on trial. They think they can convict him. They think they can do it without any compromises to our system and our usual way of taking care of, you know, suspects. And they've been stopped because of a lot of fear mongering, basically, by the political people, whether it was the mayor of New York or even at a point when this thing just sort of picked up momentum. And nobody wanted to stand in a way of the fear.

  • 10:12:39

    MAYERAnd then the Democrats got on board who are, you know, in Congress as well and said no trials in New York City. And it's -- to a certain extent, I think it's irrational because there actually has been a successful trial that took place quietly in the shadow of where Khalid Sheikh Mohammed would have been tried himself of another major suspected al-Qaida, and that is Ahmed Ghailani, who was -- is actually convicted. And the judge has upheld his conviction this morning, and he is going to be serving a minimum of 20 years for his part in the bombing of the USS Cole. So, I mean...

  • 10:13:16

    REHMJohn Bellinger.

  • 10:13:17

    MAYER...that our system, you know, is alive and well and actually works to try terrorists -- as far as I can tell as a reporter -- but our political system seems to be incapable of handling the situation.

  • 10:13:30

    REHMSo where does all this leave the Attorney General Eric Holder? Or what can he do? What can he not do, John Bellinger?

  • 10:13:41

    BELLINGERPoor Eric Holder is in a total bind right now. And one reason that we've not seen any progress at all in the last 16, 17 months is that they're completely in a box. I think we probably will see an announcement, perhaps as early as this week, but in the next couple of weeks, that will try to make the path forward. But the administration's overall program has been to have both federal trials -- in some cases, like the planners of 9/11, Khalid Sheikh Mohammed and others, in which Eric Holder announced in the fall of 2009 that he wanted to have those trials in New York, and then had to immediately back off because of the hue and cry from New York City -- and to also have some military commission trials for those individuals who had committed military offenses.

  • 10:14:31

    BELLINGERRight now, there have been, for the last year-and-a-half, no trials, no announcements. What we're expecting to have go forward now at minimum -- we're expecting, actually, an announcement -- perhaps as early as today -- from Secretary of Defense Gates, is that new military commission trials will begin for some cases so that, at least, some military commissions will go forward. The unanswered question -- which Eric Holder will have to make an announcement some time soon -- is, will they try to go forward with federal trials at all? The problem is Congress has prevented them from bringing anybody into the United States for trial.

  • 10:15:08

    MARTINWell, John, they just -- as Jane just pointed out -- they just successfully convicted someone from Guantanamo in federal trial in New York who faces a sentence of 20 years to life.

  • 10:15:20

    REHMSo you believe that that kind of trial will continue?

  • 10:15:26

    MARTINI think that the president said when he signed the bill in December that he was committed to going forward and getting rid of the restrictions and the obstacles that the Congress had put in this way.

  • 10:15:37

    REHMHow many people remain in Gitmo, Jane?

  • 10:15:42

    MAYERI think it's 173.

  • 10:15:44


  • 10:15:44

    MAYERIs that correct?

  • 10:15:45


  • 10:15:45

    MAYERWhen Obama came into office, there were 245. And, I believe, now there are 173.

  • 10:15:50

    REHMAnd what's happened to that other 100 or so?

  • 10:15:53

    MAYERWell, a variety of things. I mean, there's been an effort to try to sort out who's -- who is not a danger or not guilty and try to take those people and redistribute them around the world to places where they can go safely. And there has also been an effort to try to line up those who seem like they are being held for good reasons, try to give them some kind of legal process so that they will stand trial -- either a military trial or another kind of trial. The problem, as far as I'm concerned, though, is there's a kind of a limbo category down in Guantanamo.

  • 10:16:28

    MAYERAnd I think this is really the kind of the central, sort of, ethical dilemma for the United States at this point is in this issue, is there's something like 48 people who are -- have been cleared to leave. They are not considered guilty or dangerous necessarily, but there is no place for -- that we've been able to put them.

  • 10:16:51

    REHMWhy not?

  • 10:16:52


  • 10:16:52

    REHMWhy not?

  • 10:16:54


  • 10:16:54

    BELLINGERLet me actually just -- let me adjust that, just slightly. There are -- the administration, after a year, has completed review of all the people in Guantanamo, and they concluded that about 40 of them can be tried either in federal courts or military commissions. And, Kate, just to be clear, I support trials in federal courts for some people. So about 40 could be tried, about 80, 90 ought to be transferred or released -- and the administration is working on those -- but the number that Jane is talking about, which I agree are a real problem. They identified 48 people who they believe are not innocent. They've done things wrong. They believe they're very dangerous and that they are, in fact, so dangerous they cannot be released but nor can they be tried. So those are the people who are in limbo, essentially facing indefinite detention and...

  • 10:17:48

    REHMThe question is where?

  • 10:17:51

    MARTINThat's one of the questions, and the Obama administration tried to move those people to Illinois in order to close the prison. But, I guess, I've -- I see the question as more complex about those people. First of all, it's not indefinite detention so much as law of war detention. Law of war detention has been approved by the Supreme Court in 2004. It's a traditional way of keeping people in prison while we have troops engaged in combat and hostilities in Afghanistan. And each one of those people has had and has the opportunity to challenge their detention in habeas proceedings in federal court.

  • 10:18:37

    REHMKate Martin, she is director at the Center for National Security Studies. Do join us, 800-433-8850.

  • 10:20:03

    REHMAnd as we talk about Guantanamo with Kate Martin of the Center for National Security Studies, John Bellinger of the Council on Foreign Relations and Jane Mayer of The New Yorker, of course, President Obama is scheduled to deliver his State of the Union address tomorrow night. Will he talk about Guantanamo, John Bellinger?

  • 10:20:35

    BELLINGERI anticipate that he will. It's not something, I think, that he would like to talk about because it's not a great thing to feature. But as...

  • 10:20:42

    REHMAnd what might he say?

  • 10:20:44

    BELLINGERWell, as you noted at the beginning of the show, we've now passed -- we're now at the two-year anniversary of his stating that Guantanamo would be closed a year ago, and it looks like it's not going to get closed. So I think he's going to have to address it in some way, essentially to say that it's unfortunate, that he'd like to have it closed and that he has continued to work to that end. We are expecting, later in the week, the president to issue an executive order that will clarify the terms of detention of these individuals -- who Jane mentioned -- who may be held for a long time...

  • 10:21:19

    REHMThe 48.

  • 10:21:19

    BELLINGER...the 48 who may be held for a very long time but without trial, that would clarify that they may be held under the laws of war, but give them, essentially, more rights to challenge their detention, including, potentially, with lawyers to assist them. It's widely anticipated that the president will issue that executive order later on this week.

  • 10:21:41


  • 10:21:41

    MARTINWell, of course, they already have lawyers to assist them in their habeas cases to challenge their detention. What I understand the president is considering is an order that would give an internal process to look at their cases from time to time. I think one of the things that's lost in this debate is the question of why it is so important to close Guantanamo and why, before the election, there was a bipartisan consensus that doing so would be helpful and essential to our national security. And it was Sen. McCain, President Bush, and the reason was because Guantanamo had become a symbol of the detention and interrogation policies of the last administration that were illegal, had damaged the standing of the United States in the world.

  • 10:22:37

    MARTINAnd one of the things that's lost in the kind of shorthand about closing Guantanamo is President Obama has made incredible changes in the detention and interrogation policies of the United States going forward. He has met with lots of obstacles about how to deal with the leftover -- the people in Guantanamo who were put there and outside of any kind of legal process, who were abused when they were put there. And it has been very difficult to bring those people back into a legal system, especially given the political opposition and what Jane, I think, correctly describes as fear mongering.

  • 10:23:25

    REHMHere is an e-mail from Marian, who says, "Gitmo detainees deserve due process of law. To keep people locked up without habeas corpus rights is a violation of human rights. Charge them, schedule a speedy trial or let them go. This situation is outrageous." Jane.

  • 10:23:52

    MAYERWell -- and, I think, what's complicated is that -- and hard to understand about the Obama administration is there was, I think, a majority that supported a point of view, much like your caller, when Obama came into office. And as Kate said, there was bipartisan support for closing Guantanamo. The Defense Secretary to Bush, Mr. Gates, is Defense Secretary now to Obama, and throughout he has supported closing Guantanamo. And it's -- John McCain campaigned on it, and so did President Obama.

  • 10:24:27

    MAYERAnd so what happened is a kind of a fascinating political mess. And it was -- it's also, I think, a -- well, I hate to say it, but I think that it -- it's -- there's been a lack of leadership from Obama in terms of using the bully pulpit and making the arguments that resonate in America to -- that would bring the country along with him on these policies. He's been -- he gave one very good speech, which we've mentioned, the archive speech in the spring of 2009. But, otherwise, he has not used the pulpit that much, and, meanwhile, the Republicans, particularly in the form of Sen. Mitch McConnell, have just made this into a crusade. McConnell...

  • 10:25:10

    REHMBut as John Bellinger pointed out, in that first year, it was not just Republicans who voted against.

  • 10:25:20

    MAYERBut that was after -- it was -- there's a terrific piece in The Atlantic Monthly by Josh Green. It's a profile of Mitch McConnell, and it describes that he -- they -- the Republicans were looking for some wedge that they could hurt Obama with, after Obama was elected. He seemed godlike and impossible to take on at that point, but they settled on Guantanamo. And McConnell went down to the floor 25 days in a row to speak about Guantanamo and to rally his troops to fight the Obama administration on it. And by the time he was done, he had great momentum. And even the Democrats were afraid, and they backed off. And the White House, to some extent, backed off, too.

  • 10:25:57

    REHMHere's an e-mail from Beth in Lexington, Ky., who says, "I've never heard any real reason why it was such a horrible idea to hold trials in New York City. Was there a rationale I missed? It always seemed to me that the folks in New York City would be happy to have the chance to bring justice to the people who harmed them, of all Americans, so directly." John Bellinger.

  • 10:26:31

    BELLINGERPersonally, I thought it was fine to have federal trials for Khalid Sheikh Mohammed and the other planners of 9/11. They had committed federal...

  • 10:26:39

    REHMIn New York City.

  • 10:26:40

    BELLINGERIn New York City, in general, I think, was a good idea in principle. In practice, though, I think that Eric Holder had not laid the groundwork beforehand. He had not widely consulted to find the views of New Yorkers and Mayor Bloomberg. And it may, in fact, be that it would raise too many practical problems. Had it been me, I probably would have had federal trials, but put it in a more isolated location so it wouldn't disrupt all of New York City.

  • 10:27:15

    BELLINGERIn general, though, I agree with Jane. There's been an enormous amount of fear mongering about what might happen, that -- and that's why Congress and, again, both Republicans and Democrats, unfortunately, have come together to block even federal trials in the United States. And just to correct one thing from the previous caller -- because this is important to know -- is every individual in Guantanamo has the right to bring a habeas case to challenge his detention. And, in fact, almost all of them have. And our judges here in the District of Columbia -- where we are -- are, in fact, spending almost all of their time on these Guantanamo cases.

  • 10:27:56

    REHMBut Steve in Frederick, Md. wants to know about the 48 who cannot be tried or released. Were they tortured? Why can't they be tried?

  • 10:28:10

    MARTINYou know, there's a very detailed answer to that question in a report issued by the Detainee Task Force Review Board in the summer of 2009. And they said they looked at the cases, and they determined there were these 48 cases. The key thing is that they determined, first of all, that there was a legal basis to hold them without trial under the laws of war, and then they say the reasons that they can't be tried were various. Mostly, they did not have to do with tortured evidence, which is the perception, because, as you know, tortured evidence would not be allowed in military commission proceedings, as well as criminal trials.

  • 10:28:58

    MARTINMostly, they had to do with the fact that these people had been picked up on the battlefields of Afghanistan or Iraq or borders of Pakistan. And there had been no effort made to gather admissible evidence to be used at trial, which is the standard procedure and which is why it's so important what the Obama administration has done, which is to draw a line between detainee operations in Afghanistan, where U.S. military forces are fighting, and dealing with suspected terrorists in the United States, in Europe and other parts of the world. The Obama administration has been very clear -- unlike the Bush administration -- that suspected terrorists inside the United States will be picked up and tried as criminals.

  • 10:29:51

    REHMJohn Bellinger, in the past, the Obama administration has said that Guantanamo serves as a recruiting tool for terrorists. Do you believe that is still the case?

  • 10:30:07

    BELLINGERI think it does damage us both with our allies around the world and amongst the Muslim population. It's very damaging to the United States in terms of the values that we stand for, and, I think, it does potentially serve as a recruiting tool. It's very hard to show that, but we know that Guantanamo certainly is extremely unpopular image in the Muslim world. And one of the difficult things, I think, for the -- for President Obama now is that it appears that he is faced with keeping Guantanamo open. And I have to say I disagree with Kate that it's -- that's unlikely to change. I think it's even less likely in an election next year that Congress is going to change the law and allow him to close it. So I think Guantanamo will be open for a while. But how can he appear to make Guantanamo more palatable in other parts of the world?

  • 10:31:09

    REHMAll right. Last e-mail here from Phil in Indianapolis. He says, "Conservatives repeatedly say President Obama is rightfully following President Bush's policy of keeping Guantanamo open and that this is confirmation that the Bush policy was correct." He goes on to say, "I suspect the reason for keeping Guantanamo open is that, under President Bush, enhanced interrogation techniques and waterboarding would mandatorily throw out most incriminating evidence, and thereby release prisoners. To what extent do U.S. citizens believe that President Obama is truly supporting Bush policy or that any U.S. judge would, by law, have to throw out the charges?"

  • 10:32:12

    MAYERWell, I think -- I mean, the e-mailer is right, that there have been a number of people from the Bush administration who have pointed now to Obama and said, you see, what we did was right. He's doing the same thing. And, again, it's much more complicated than that because the people in the Obama administration are not saying, we embrace these policies. This is what we think is right, and this is what we want to do. What they're saying is, we were stuck with a total mess. Once you take people outside of any known legal framework, it's very hard to figure out how to bring them back in.

  • 10:32:45

    MAYERAnd that's what they've been trying to do. They're not saying, moving forward, we're going to keep doing the same thing. And this is actually now becoming an issue because you've got the new Republican chairman of the House Armed Services Committee, who's name is Buck McKeon, saying, I think not only is Guantanamo a good idea, but maybe we should enlarge the population up to 800 people there. Now, the Obama administration is saying -- they're trying to say, draw the line. We're not doing this again. This was a big mistake.

  • 10:33:12

    REHMJane Mayer of The New Yorker. You're listening to "The Diane Rehm Show." John Bellinger.

  • 10:33:21

    BELLINGERIn full disclosure, I think many of your listeners know that I served as the legal adviser for the Department of State in the Bush administration. So I have views from the past administration, and so take this for what it's worth. But I think there's -- there are different kinds of policies in the Obama administration. There are those things that they would like to change but can't, like closing Guantanamo and holding federal trials. But then there are other things where they have continued certain policies because they have concluded that that is the only way to go, for example -- and Kate referred to this -- holding people under the laws of war.

  • 10:33:57

    BELLINGERThe Obama administration, I think, came into office, at least, wanting to only hold individuals if they could try them but then, having reviewed all the individuals in Guantanamo, found that there were many who had not committed federal crimes but who should appropriately be held because they were fighting us in a conflict. And, I think, senior Obama administration officials, including the attorney general and others, are going to say, we believe that it is appropriate to hold these individuals under the laws of war. And so that's not a policy that they would like to change. It's a policy that they have accepted.

  • 10:34:38

    MAYERI don't...

  • 10:34:38

    MARTINI would disagree with that.

  • 10:34:39

    MAYEROkay. Okay, you go first.

  • 10:34:42

    REHMGo ahead, Kate.

  • 10:34:43

    MARTINYou know, in 2004, my civil liberties organization wrote a brief to the Supreme Court saying that it was appropriate to hold individual fighters seized in Afghanistan under the laws of war. What the Bush administration policy was -- about the laws of war detention -- was that the United States could seize anybody anywhere in the world, including in the United States, and hold them "under the laws of war" without any process, et cetera. From the beginning, no one has said, there aren't law of war detainees.

  • 10:35:20

    MARTINThe people being -- the fighters in Afghanistan and in Iraq are held under the laws of war. This administration has not embraced the view of the Bush administration about law of war detention going forward. As to how it applies to the people in Guantanamo, as Jane said, they inherited a much bigger mess than they realized, including the fact that when they came into office, they discovered that the previous administration hadn't even compiled complete files of information on the individual detainees in order to determine who they were and what evidence there was.

  • 10:36:03

    MAYERBut this -- the issue that your caller has also raised, which is about whether or not the use of torture -- waterboarding -- will make difficult a fair trial for some of the detainees or get in the way of convictions is actually going to be something we're all going to be watching pretty soon, I think, because as al-Nashiri, basically about to be put -- you know, he's being lined up for a military trial down in Guantanamo. He's an al-Qaida suspect who was waterboarded by the CIA during the Bush years, and it will be a tremendous test of, you know, whether a fair process can be applied to convict somebody who was waterboarded.

  • 10:36:44

    MARTINBut, Jane, you would agree one of the important things to recognize is that the interrogation procedures under the Obama administration are completely different than what the Bush administration put into place.

  • 10:36:57

    REHMAnd the other point I would raise is that during that -- during the Bush administration, when that order went out, I did hear from callers saying to zap me and they come pick us up here in the United States in the middle of the street and charge us with nothing, just charge us. And so, I think, there was a fair amount of confusion, fear going on that is not the case today. We're going to take a short break here. When we come back, we'll open the phones for your comments. Stay with us.

  • 10:40:03

    REHMAnd we've got lots of folks waiting on the phone. Matt in St. Louis, Jerry in Cleveland, Jim in Ohio. We'll try to get to all of you. First to Matt in St. Louis, Mo. Good morning to you.

  • 10:40:21

    MATTGood morning. I was wondering about the status of the Uighur individuals that were being held. Are they still in limbo? Or has somebody taken them?

  • 10:40:29


  • 10:40:29

    MAYERWell, there were 17 Uighurs, as far as I know, down in Guantanamo. And, I guess, the majority of them have now been distributed to other countries. There are still some down there. They haven't been able to find the right places for them, but -- excuse me -- I think that, to me, the interesting about the Uighurs, who are a Chinese Muslim minority, is that several of them were cleared in a process that most never even learned about to come to the United States. And it was a very, you know, detailed complex arrangement. They were cleared to come through by the State Department and the Homeland Security office and everybody else, and they were going to come to Northern Virginia.

  • 10:41:09

    MAYERBut at the last minute, the -- basically, there was a political outcry, fear, that they would do something wrong. Somehow it slipped into becoming terrorists, even though the United States courts had said they were not terrorists. So they were barred from coming here. And the inability of the U.S. to take those Uighurs has been a big problem because it's been very hard for us to argue to other countries, you need to take detainees when we haven't taken any ourselves. Those two that were supposed to come here wound up going to Bermuda, where I hear they are working for a country club, taking care of sandpits particularly and looking for wives.

  • 10:41:49

    BELLINGERIf I could just add something historically on that, Diane, because the Uighur situation -- they are a Chinese ethnic group who were found in Afghanistan in training camps, but it was quickly determined as early as something like 2002, that although they've been picked up by our military, that they did not pose a threat to the United States. They were fighting the Chinese. So as early as 2002, 2003, the Bush administration wanted to let them go, but could not find any country in the world that was willing to take them.

  • 10:42:23

    MAYERWhy didn't we take them?

  • 10:42:24

    BELLINGERWell, it was something I long supported as early as 2002 in the -- to take them into the United States. But our Department of Homeland Security -- both then and now -- had been quite concerned about releasing them inside the United States. And it's -- the point is this is emblematic of both presidents' problem. Whether they're Uighurs or anybody else, when you want to let someone go, other countries are very quick to criticize Guantanamo but very slow to help.

  • 10:42:53

    REHMAll right. To Statesville, N.C. Good morning, Marshall.

  • 10:42:58

    MARSHALLGood morning. My question is this, Sen. Lindsey Graham, who does not strike me as being a terribly politically motivated individual in this debate, has been a strong advocate of trials by military tribunal rather than trials in the federal civilian courts. What is his argument for doing this in the military tribunals as opposed to the civilian courts?

  • 10:43:22

    REHMJohn Bellinger.

  • 10:43:23

    BELLINGERWell, Lindsey Graham has tried to position himself, really, in the middle on this issue and, I think, has ended up both being supported in some cases, but criticized from both sides. In general, he believes that the individuals who are being detained have committed war crimes, that they are part of an enemy army, al-Qaida, and they ought to be tried, therefore, in military trials, in military commissions. It's my understanding of his point of view.

  • 10:43:53

    MAYERIt's become kind of an ideological fault line whether or not the government treats terror suspects as criminals or as soldiers. And it's become kind of -- the right, the Republican Party, to some extent, wants to say this is war, and the left, to some extent, some of the Democrats want to say this is a crime. It's really a kind of a mixed-breed problem because they seem to be both depending on how you want to define them. But I think another thing about Lindsey Graham that's interesting is Lindsey Graham used to be a JAG in the military. And so he's a huge supporter of military law partly because he used to be part of the military law system.

  • 10:44:33

    REHMAll right. Here's an interesting e-mail, "Almost 20 of the released detainees have returned to direct involvement in terrorist activities." This is the statement from our e-mailer. First, is that true? Do we know?

  • 10:44:55

    MARTINI think there has been a report by the administration that some number -- and it might be that...

  • 10:45:03


  • 10:45:03

    MARTIN...out of the approximately 800...

  • 10:45:06

    REHMWho were released.

  • 10:45:06

    MARTIN...who have been released.

  • 10:45:08

    REHMOkay. He goes on to say, "Take the case of one released detainee, Abdallah Saleh al-Ajmi, a Kuwaiti who was repatriated from Guantanamo in 2005, transferred to Kuwaiti custody. A Kuwaiti court later acquitted him of terrorism charges. Al-Ajmi later committed successful suicide attack in Mosul, March 25, 2008. On Jan. 13, 2009, the Pentagon said it had evidence that 18 former detainees have had direct involvement in terrorist activities."

  • 10:45:54

    BELLINGERWell, this really does show the conundrum. I mean, however, there's been some debate about how you count the number of people...

  • 10:45:59


  • 10:45:59

    BELLINGER...who have returned to hostilities, but, indisputably, some number returned and released, have gone back right back to fighting us and have posed a threat to us. And this really shows the problem of the extreme views of Guantanamo one way or the other. It's clear that not everybody in Guantanamo should have been there to begin with and that there were some people who shouldn't have been there and should have been released promptly. But at the same time, there are people who were there, now, who indisputably are extremely dangerous, and there are also some people who have been released who are dangerous.

  • 10:46:36

    MAYERBut there's also another way to look at these numbers, which is there's a recidivism issue with whatever kind of system of justice. And, I think, the numbers of people who were locked up in the -- for criminal offenses in the U.S. prison system who get out and commit crimes again is a much higher percentage than those that have gotten out of Guantanamo and gone back to -- or started, in some cases -- committing crimes. So...

  • 10:46:58

    REHMWhat's the recidivism right now here in U.S. prisons? It's actually high.

  • 10:47:05

    MAYERIt's high, I mean -- and I think that the issue beneath all this -- and I'm not a lawyer -- is just that before 9/11, the general sort of consensus was in this country that it's worse to hold a innocent person wrongfully in prison than to let a guilty one out by mistake...

  • 10:47:28

    REHMHere's an...

  • 10:47:28

    MAYER...if you're going to. And it's not necessarily seen that way now.

  • 10:47:31

    REHMHere is a practical question from John in Ann Arbor, Mich. "What are Gitmo's financial costs to date per prisoner? Isn't this a huge amount to besmirch America?" Do we have any figures on that, either in total or per prisoner?

  • 10:47:54

    MARTINYou know, the Defense Department recently did a report on those figures -- which I don't remember what they are -- but one of the things they showed was that, well, an enormous amount of money has been spent in kind of sunk costs to build Guantanamo, that if you compare the costs of holding people there going forward versus the costs of holding people inside military prisons or civilian prisons in the United States going forward, we will spend a lot more money if we keep people in Guantanamo than if we have people in United States prisons.

  • 10:48:35

    REHMWhat about the safety of these prisoners should they be transferred from Guantanamo to U.S. prisons?

  • 10:48:47

    MAYERWell, I mean, one of the ironies that flies in the face of all of these kind of, you know, left-right kind of arguments is that, in fact, the lawyers who represent some of the Guantanamo prisoners have said that the prisoners, the detainees, prefer the conditions in Guantanamo to the conditions in the United States prisons, to some extent. So...

  • 10:49:08


  • 10:49:09

    MAYERThere's open air. It's tropical. They have a chance to mingle among themselves with each other. They're -- but, you know, these are the sort of the atmospherics that make -- life may be better, but don't really deal with the real problem down in Guantanamo, which is indefinite detention for people that maybe haven't had full kind of legal adjudication.

  • 10:49:33

    REHMLet's go now to Perry, who's in Brunswick, Md. Good morning.

  • 10:49:38

    PERRYGood morning, Diane.

  • 10:49:39


  • 10:49:40

    PERRYMy comments are brief. I think the problem here, I understand -- it's complex, and I learned some different things this morning I did not know. People in this country, we're not unaccustomed to dealing with complex problems. I think what we lack here is pulling the political courage to do what's right. The president, when he campaigned, said he would close it. If he found complex problems, he should have told us about it honestly and not let the Republicans scour him into doing nothing, or at the worst case scenario, which we're living with now, is continuing this policy. And whether it's exactly what the Bush administration people were doing or not, we, you know -- it's clear we know they're not doing the torture.

  • 10:50:22

    PERRYBut in terms of how you put it in the world, people see it as being a continuation. And that's where it's right. I just think he lacks the political courage, and I blame that on his advisers and, of course, on him for deciding to keep it there.

  • 10:50:35


  • 10:50:36

    MARTINWell, you know I don't know how the decisions are made or what the specific decisions are inside the White House. It is clear in that the Congress -- at the behest of the Republican leader in the Senate as Jane described -- made it one of their key points to attack Obama by preventing the closure of Guantanamo. And whether or not I think he certainly could have said more and perhaps talked about it more, I'm not sure that it's an issue that people in the United States think is at the top of the agenda. I think that they have...

  • 10:51:17

    REHMSome people do, but...

  • 10:51:18

    MARTINYes. And they have put a lot of energy into the question of, how do we go forward in Afghanistan and other places within the rule of law? They haven't been very successful on closing Guantanamo, but the Congress has done nothing but obstruct it.

  • 10:51:35

    REHMAnd Janie in Baltimore wants to know, "Is there any reason we cannot hold federal trials at Gitmo? It would just be a case of geography and not method." Would that be possible, John?

  • 10:51:52

    BELLINGERIt's actually a great idea that the administration has been thinking about as a plan B since they've been blocked from holding federal trials in the United States.

  • 10:52:02

    REHMWhat do you think about that, Kate?

  • 10:52:02

    BELLINGERAnd one more thought.

  • 10:52:04


  • 10:52:04

    BELLINGERIt would require legislation to do it though.

  • 10:52:07


  • 10:52:09


  • 10:52:09

    MARTINBecause there's no jurisdiction to do it, and it's an enormous practical problem. You're going to have the juries live at Guantanamo? You know, it's much more of a practical problem than trying KSM in New York, which has a maximum security holding cell for Khalid Sheikh Mohammed right next to the courthouse, so that you don't have to transport him back and forth between jail and the trial.

  • 10:52:36

    REHMAll right. Let's go to New Braunfels, Texas. Good morning, Marvin. You're on the air.

  • 10:52:44

    MARVINGood morning. I just wanted to comment that, to me, as long as Guantanamo is there, it's going to be a monument to the cowardice of the American people.

  • 10:52:54

    REHMHow do you react, Kate?

  • 10:52:57

    MARTINWell, I do think it's seen as a symbol of the wrong-headed and illegal and, in my view, immoral policies of the Bush administration. And that's why everyone agreed that it needed to be closed. Whether that's separate from what's happening there is how it's perceived as a symbol of the last administration's policies.

  • 10:53:20

    REHMKate Martin, director of the Center for National Security Studies. You're listening to "The Diane Rehm Show." Do you want to add to that, Jane?

  • 10:53:32

    MAYERNo. I think that's right. So, no. I've…

  • 10:53:39

    REHMBut why -- I mean, you point to the Bush administration. But isn't the Obama administration, whether it's politics or otherwise, stuck? I mean...

  • 10:53:54

    MAYERNot really. I mean, I think that there's -- that they've got -- it's a -- they see it as a political loser of an issue, one that they don't want to spend a lot of capital on. And I think many people can understand why. It's not a problem they created, and they've got many problems on their plate right now. But if they had really, truly wanted to take it on, I think it's an opportunity for leadership and that -- I actually believe that there are arguments you can make about why we need to close Guantanamo and do the right thing legally that the American public would support. But you've got to kind of step up to it. And I actually think we saw, really, towards the end of the Bush administration, a number of people, including John McCain and others on both parties, stepping up to it and leading on it. And they were making headway.

  • 10:54:39

    MARTINAnd I'm hopeful that that's what the president is signaling when he signed the statement in December, saying that he was going to work to oppose what the Congress has done to stop it.

  • 10:54:49

    REHMAll right. According to a McClatchy report in September of 2010, it cost $27,251 a year to house a federal prisoner and $650,000 per captive at Guantanamo. Wow. And here is a final e-mail. "Is the government actively looking for other locations that could be used for a trial but with far fewer security issues?" Anybody know?

  • 10:55:30

    MAYERI think they were.

  • 10:55:31

    BELLINGERRemember, Eric Holder's announcement in the fall of 2009 was that there would be a two-track approach to have federal trials in the United States and military commissions in Guantanamo. Since then, nothing has happened. This week, we think military commissioned trials will begin again in Guantanamo. They've been looking for 18 months about whether they can restart federal trials. It really looks like they are not going to be able to do that inside the United States. And they will have to just keep looking at it. As far as having them anywhere else, those are really the two choices, either inside the United States or on Guantanamo.

  • 10:56:04

    MARTINI mean, they could do it. I mean, physically, the courthouses exist. The judges are there. The prosecutors are ready and the Justice Department could indict someone in a particular jurisdiction. And the clock would start ticking, and it would go forward. It can be done, but it's the politics that's the problem. They don't want to run -- the kind of political backlash from that could be just very difficult.

  • 10:56:30

    BELLINGERAnd Congress has passed a law that prevents an individual from being transferred to the United States for trial.

  • 10:56:36

    REHMJohn Bellinger, he served as the legal advisor for the Department of State under Secretary of State Condoleezza Rice. Jane Mayer is staff writer for The New Yorker and author of "The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals." And Kate Martin, director of the Center for National Security Studies, thank you all so much.

  • 10:57:11

    MARTINThank you.

  • 10:57:12

    REHMAnd thanks for listening, all. I'm Diane Rehm.

  • 10:57:16

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Susan Nabors, Denise Couture and Monique Nazareth. The engineer is Erin Stamper. Dorie Anisman answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information.

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