MS. KATTY KAYThanks for joining us. I'm Katty Kay of the BBC sitting in for Diane Rehm. She's on a book tour. The U.S. military prison in Guantanamo Bay, Cuba, houses 91 terror suspects. Yesterday, President Obama sent Congress a proposal to close the 9/11 era detention center, something he's promised to do ever since he took office. But Republican leaders have already spoken out against this new plan and it's expected to hit a roadblock in Congress.

MS. KATTY KAYJoining me in the studio to talk about efforts to close Guantanamo, David Welna of NPR and Stephen Vladeck of American University Washington College of Law. Later, we're be joined by Republican Congressman Michael Burgess and by Marc Thiessen. He's from the American Enterprise Institute. I'll be taking your calls and questions. Do give us a ring, 1-800-433-8850 is the phone number.

MS. KATTY KAYYou can also send us an email, drshow@wamu.org. Find us on Facebook. You can tweet us as well and we look forward to hearing from you. Gentlemen, good morning.

MR. DAVID WELNAGood morning.

MR. STEPHEN VLADECKGood morning.

KAYOkay. So when I heard about this yesterday, David, my first reaction was why is the president doing this. It doesn't have a hope of getting through Congress.

WELNAWell, it was actually Congress that told the president he had to send a plan for the future arrangements for detaining people, such as the ones being held in Guantanamo. They gave him a deadline that expired yesterday so they wanted until the very last day to send this over. But this plan has been long promised and, really, I think that whatever President Obama ends up doing, he had to submit a plan to Congress to check that box even though the prospects for it being passed by Congress were almost zero.

KAYZero, Steve. What's in the plan?

VLADECKWell, so the plan has a couple of features that I think, you know, are not surprising. They're not that different from what the president outline in his May 2009 speech at the National Archives. The absolute preference is to transfer as many of the detainees to foreign countries for release under security conditions.

KAYHow many, Steve, do you think could be transferred?

VLADECKWell, so right now, there are 35 of the remaining 91 who have been cleared for release, but that number keeps going up because one of the interesting parts of this story is the periodic review boards that the president has created at Guantanamo have been very quietly, but very consistently clearing detainees, not holding that they're not subject to detention, but holding that they no longer satisfy the criteria the administration has for forward-looking detention because they no longer pose a threat.

VLADECKSo far, there have been 21 detainees whose cases have gone before the PRBs. Eighteen have been cleared and that's of the folks who are still at Guantanamo 15 years after it opened.

KAYSo we're actually talking, potentially, about a fairly small number of detainees who the president may want to rehouse on soil in the United States, in prisons here.

VLADECKI think that's right. Ultimately, I think the irreducible minimum that we're going to be left with by the end of this year is probably going to be somewhere between two and three dozen and not the 91 we're looking at right now. I think the government has made far more aggressive efforts to resettle these detainees and then get this number as low as possible. It's not going to be zero and so the question becomes what do you do with that group of folks who can't be cleared and/or can't be sent to a foreign country.

KAYOkay. We'll look at that in just a minute. But David, first of all, I want to talk to you about Guantanamo. You came back on Saturday from Guantanamo Bay. What did you see there?

WELNAWell, I went there to cover another session of the military commissions. This is a process that is adjudicating those who have been charged with terrorism and this case involved the five men accused of plotting the 9/11 attacks. The U.S. government has been trying for more than eight years to bring these men to trial. That effort failed under President Bush. Then, President Obama wanted, initially, to bring those five to a federal court in Manhattan to have them tried.

WELNAHe ran into a buzz saw of opposition in Congress over that and he finally resorted to tweaking the military commission's process and starting this over again. That happened almost four years ago. They are still in pre-trial proceedings. There have been almost 4,000 motions filed. The defense says it will probably be another five years before these men are actually brought to trial even, much less the sentencing phase and appeals.

WELNAAnd ten of the people Steve was talking about are in this military commissions process, including these five and it's not terribly clear what would happen if they were all brought to the U.S., whether they would continue with these military commissions that I was down there covering or if these cases would be put into the federal court system.

KAYDavid, we heard a lot about the hunger strikes that were on a couple of years ago now. Are there any of the detainees still on hunger strike down there?

WELNAThey won't say exactly how many. They say a handful of people are having this sort of force-feeding going on. But the conditions that lead to the mass hunger strikes have been dealt with and there isn't the upheaval that there used to be there. There are only three of the detainees who are wearing orange jumpsuits, which means they're in non compliance and they've been misbehaving.

WELNASo 3 out of the 91. It doesn't seem like there's that much unrest there right now.

KAYI've never been there. I don't know if you have been down there, Steve. But for our audience who is listening, describe it a little bit for us, David. What's it like going to Guantanamo Bay?

WELNAIt is very strange. I've been to Cuba many times, the rest of Cuba, and, of course, you cannot get to Guantanamo from the rest of Cuba because there's a huge barrier that would keep you out. But it's a military base, but it's very compartmentalized. There's an area of the base that sort of surrounds an abandoned airstrip with a big hanger and sitting beside that hanger is this, what they call, expeditionary legal complex, which is a kind of portable courtroom for what is really a totally portable court.

WELNAYou have almost the entire courtroom flying down on one plane from Andrews Air Force Base here for these sessions for the 9/11 defendants. It's every other month unless there are problems. And they actually only met twice in the past year because of those problems. But you have the judge, the defense, the prosecution, the translators...

KAYAnd do you get to see any of the prisoners while you're down there? I mean, is it the kind of place where if you look across a courtyard you can see them?

WELNANo.

KAYOr you get to -- shown the...

WELNAWell, in the courtroom, you can see the defendants. They have the right to be in the courtroom, which they had not had in the early military commissions. And so they're escorted in by soldiers and they sit in five rows, one behind the other. One of them tried to fire his lead attorneys this week and when the judge wouldn't go along with that, he said he would no longer be attending these sessions.

WELNABut if you want to see the rest of these detainees, it's very hard to do it without arranging a special tour down there. They have put all kinds of restrictions on these tours. They used to go on for several days. They did one day where you would fly in and fly out the same day in the past few weeks or so, I guess. But you don't see these prisoners otherwise.

WELNAYou can go by on the road. There's razor wire around these tall walls surrounding the prisons. There are two large-sized camps and then there's one secret camp where 15 of these detainees who were interrogated by the CIA for several years before being brought to Guantanamo.

KAYWhat do you mean by secret?

WELNAIt's called Camp 7 and it's where the five 9/11 defendants are held with the 10 others. And we have never been allowed to go there. Defense attorneys have not been allowed to go there, either. They meet with their clients elsewhere there. They're kept onsite.

KAYSo we know nothing about what the conditions are like there.

WELNAWe don't. The international committee of Red Cross has had access there so -- but they don't really disclose their findings, either. So it's kind of a big question mark.

VLADECKBut all this -- I mean, I think David's description of the surreality and the compartmentalization of Guantanamo, I think, is really important because what it really underscores is how it actually would be different if the detainees where here, even under the same legal authorities, even in continued military detention. Being held on U.S. soil, you eliminate some of the logistical obstacles that are really quite burdensome to the attorneys and to the folks involved in these cases.

KAYYou mean, having to fly down to Cuba, set up these temporary courts, et cetera?

VLADECKWell, and also it's not just that. I mean, I think, you know, being on the military base at Guantanamo is unlike any other military base certainly I've ever been on insofar as how regimented it is, how much you have to be escorted everywhere you go. You know, I think there would just be -- even if the laws were the same, even if the rules were the same, even if the procedures were the same, having the detainees here would just make it look so much less obscured and so much less like it was a collective effort to hide these people from the scrutiny of people like David and the public.

KAYDavid.

WELNAThe other thing is that the courtroom proceedings themselves, I had access to watching the proceedings behind three panes of glass and with a video monitor showing what was going on in the courtroom 40 seconds earlier and the audio accompanying that. So you have this strange scene of you're watching things going on in the courtroom, like the judge might get up and leave, but on your video screen, you're still seeing the judge sitting there talking.

WELNAThey do this because if any classified information comes up, they can cut off the sound to you. But that, we reporters who go there, can see and there are also close circuit feeds to places such as Fort Meade here in Washington. But there is not access to the general public for this. You could not put this on CSPAN. I cannot record anything from the courtroom and so, you know, in contrast to something like the Nuremberg trials, which are very public, this is actually a very closed proceeding.

WELNAEverywhere I go as a journalist there, I have to be accompanied by a military minder. This is not a really open process there where we can just dig around and see what's going on there.

KAYDavid, how many times have you been?

WELNAI've been there twice, a year ago and once again this February.

KAYAnd has the prison facility changed much since it was set up after 9/11 do you think?

WELNAIt has. They have abandoned the initial camp X-ray where people were held and there were several other places where they were held. The camps where they're being held now are pretty much falling apart and they'd have to be replaced and that's another argument the Obama administration is using for closing the place.

KAYDavid Welna is the national security correspondent with NPR. Steve Vladeck's with me. He's a professor at American University Washington College of Law. He specializes in national security, law and constitutional law. Stay with us for more of our conversation on the Obama plan to try and close Guantanamo Bay. We'll be right back.

KAYWelcome back to the Diane Rehm Show. I am Katty Kay, sitting in for Diane. You've joined our conversation on the White House's plan to close the prison facility at Guantanamo Bay. Joining us by phone now is Congressman Michael Burgess. He's the Texas Republican, and he's also chairman of the House Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade. Congressman Burgess, thank you very much for joining the program.

REP. MICHAEL BURGESSWell, thanks for having me on. I appreciate it.

KAYYou are welcome. You are opposed to the White House's plan that the president sent to Congress yesterday. Why?

BURGESSWell, the -- number one, as your previous guests were alluding to when the proposal was to bring the people from the 9/11 trial back to New York, I think the quote was they ran into a buzz saw in Congress. And that's exactly right, and it was a bipartisan buzz saw. So now under current law, you can't transfer these detainees back to America for trial. That is, again, I believe that was enacted when the -- when the Democrats were in charge in the first part of the Obama administration.

KAYCongressman, is there anything that the president could propose to try to close Guantanamo Bay that you would find acceptable?

BURGESSI don't think so because I'm of the camp that believes that this facility is in fact necessary. Several of your previous guests were talking about trips they'd made to the facility, I have, as well. Remember the days when these folks were picked up, it was a pretty rough time on the battlefield, and we lost CIA agents, we lost soldiers. Some of these folks were picked up with significant evidence that is now stored in a facility on the base. But there's a difficulty there in that they were not -- I mean, it's not like they were arrested in a municipality in the United States of America, where there was a chain of custody that followed that evidence that -- recognizing that that chain of custody will be challenged in a trial.

BURGESSWell, that doesn't really happen on the battlefield, and as a consequence, one of the -- one of the lines of the president's proposal that really stands out to me is that the administration will work to establish a site for the commission proceedings in a manner consistent with applicable domestic and international law. Well, I don't know that I'm really interested in these individuals having constitutional protections.

KAYBut you're not suggesting that if they were transferred to super-max prisons here in the United States, that would produce a safety concern then? That's not your objection?

BURGESSI think there -- I think there is a safety concern, but...

KAYAlthough there are 19 al-Qaeda terrorists currently in super-maxes, and that doesn't seem to be a concern.

BURGESSYeah, but there is an inherent difficulty. We have seen that in other situations, where the, just the location of someone that is of interest to either al-Qaeda, or now I guess ISIS has to be added to that mix, could create a local law enforcement difficulty. And I think I heard earlier on a television news show from a senator in Colorado, where he'd heard from local sheriffs who were concerned about that. So it's a real thing. I don't think you can just dismiss that out of hand.

KAYDo you give any credence to the argument that is raised by people who support closing Guantanamo Bay that the prison has been a recruiting tool for extremist groups, Islamic extremist groups?

BURGESSYeah, I probably don't subscribe to that philosophy.

KAYOkay, I want -- my colleague David Welna has a question for you, congressman.

BURGESSSure.

WELNAHi, Congressman. As you heard, I just returned from Guantanamo, where I was covering another session of the military commission in the 9/11 defendants' pretrial proceedings. And, you know, everyone involved with those proceedings, including the prosecution, readily acknowledges that it is taking almost forever to even get this thing to trial. It may take years before they get there. And there is a proposal in this plan that was sent yesterday to Congress that Congress make some changes in the 2009 Military Commissions Act to make this process work better, to just facilitate things more.

WELNADo you think there is a need to take another look at the Military Commissions Act, and are you satisfied with the military commissions, which have, as President Obama said yesterday, have yet to produce a single verdict?

BURGESSWell, look, my primary task, obviously, is to represent the constituents of the 26th District of the state of Texas and to provide for their safety and security. The fact that I have little interest in the rights of these individuals, who are being tried for one of the most heinous crimes that was ever perpetrated on American soil, I mean, forgive me if I don't have a charitable disposition toward that group.

BURGESSBut I will say this, and the chairman, I think the chairman of the Armed Services Committee, fellow Texan Mac Thornberry, yesterday said that his committee would be willing to look and evaluate the president's proposal. So I think that's fair. That's what the Armed Services Committee is supposed to do. That's what they're prepared to do. So if that is part of their evaluation, I'm okay with that.

BURGESSBut to tell you that I'm anxious for any of these individuals to be brought to this country and tried, no, I'm not because there are -- we all know that there can be -- there is the ability to exploit our legal system, and that, you know, when it's -- as it affects an American citizen, okay, we all get that. But these are not American citizens, they were picked up on the battlefield, they're enemy combatants, they weren't wearing the uniform of the enemy, and that makes it a little more difficult, there is no way when an armistice is signed to repatriate them with country from which they were taken, a lot of this is new territory.

WELNABut the federal courts, of course, have convicted and sentenced hundreds of accused terrorists in the United States and including the 19 al-Qaeda militants, and if that system is so productive and moves so quickly, this proceeding in Guantanamo is mired in pretrial motions, and it may never get to trial.

BURGESSAnd again, that's actually part of my concern. Do you have -- you do have people who are able to exploit the legal system. If it were in our country, they could exploit it much more effectively. What do you do about someone who's granted a pretrial release, and now they are in one of our American cities? I don't think that's a good idea.

KAYOkay, Congressman Burgess, thank you very much for joining the program.

BURGESSGreat, thank you all very much for having me.

KAYThank you. Steve, can I get your thoughts on what Congressman Burgess was saying there?

VLADECKWell, I mean I think -- let me say to the last point first, with regard to the military commissions versus the civilian courts, I think there's no question that had the 9/11 trial been kept in the civilian courts, as Attorney General Holder proposed in 2009, not only would there be convictions by this point, but the defendants would very likely be on death row. And so from the perspective of suggesting that there would be more advantages to the defendants in the civilian courts, that they'd be able to take more advantage of the legal system, I think our experience over the past of 10 years is exactly to the contrary, where the commissions have been a boon for litigation because there are so many unanswered questions about them, about the rights of the defendants, about the pretrial procedures, about the composition of the courts compared to our settled, well-entrenched civilian courts that, as David points out, have handled hundreds of terrorism cases since 9/11, including frankly a number of folks who were picked up on the battlefield overseas.

VLADECKSo on the commission front, I think that's just a non-starter. You know, if for political reasons it's sufficiently worthwhile to just defeat the president's plan, that's the Congress' prerogative. But I didn't think the arguments were especially persuasive.

KAYOkay, let's hear now from Marc Thiessen. He's from the American Enterprise Institute. Marc, you've joined the Diane Rehm Show. Thank you so much for calling in.

MR. MARC THIESSENThank you for having me on.

KAYYou are very welcome. You heard there from Congressman Burgess, and I want to pick up on also something that Mitch McConnell and Paul Ryan, other Republicans, have also said, that it's illegal to transfer these detainees from Guantanamo Bay to American soil. Can you spell out on what grounds it's illegal for us?

THIESSENWell, the Defense Authorization Bill, it started out actually in the last Democratic Senate, passed legislation, part of the Defense Authorization Bill, that prohibited the president from sending those detainees to the United States. It was after he tried to bring Khalid Sheikh Mohammed and some of the other 9/11 conspirators here, and there was a huge public outcry. And it was actually the Democratic-controlled Senate that first -- that first voted the restriction, and it's been upheld and re-passed every single time that the Defense Authorization Bill comes up.

THIESSENSo it's a bill that the president of the United States signed into law by -- on his own. So it is unlawful to spend a single taxpayer dollar on bringing these people over to the United States.

KAYBut -- and we touched on finances briefly at the beginning, one of the proposed -- one of the things that the Obama administration and the Department of Defense would say is that actually you would be saving taxpayer dollars by closing Guantanamo and improving the facilities that are here on U.S. soil already.

THIESSENFirst of all, the priority here isn't saving taxpayers' dollars, it's keeping the American taxpayer safe.

KAYNo, I only brought it up because you brought up taxpayer dollars. That was...

THIESSENNo, I'm just saying -- I didn't bring it up in the context of savings. I brought it up in the context of it's unlawful to use taxpayer dollars to bring them over here. That's what the law says. The president of the United States cannot spend a single dime of taxpayer dollars bringing KSM and these other terrorists here into the United States. They are prohibited from doing so. That's how Congress -- Congress does things by exercising the power of the purse, and they have barred him from spending any tax dollars for that purpose.

KAYDavid, let's talk a little bit about the finances because it is one of the things that both the Pentagon and the White House is raising at the moment, that it doesn't make financial sense to keep these people in Guantanamo Bay, we'd be better off keeping them here purely from a budgetary point of view.

WELNAWell, they make...

KAYIs there any argument there?

WELNAI guess in the accounting that they provided in the plan sent to Congress yesterday, they say there could be between $65 and $85 less spent each year on detaining 30 to 60 detainees in the United States. There would be big initial costs of either refurbishing or building a new prison in the United States to hold these people, and they say those costs would be -- would be compensated in three to five years by those savings.

WELNABut I don't think that -- I agree with Marc that I don't think the fiscal argument about what money we might save is one that is going to persuade a lot of people.

KAYAnd actually $65 million is not a huge amount when you look at total national security spending.

WELNANot when you consider what the -- yes, the Pentagon.

THIESSENAlthough that's just the detainees. I mean, there are some estimates that the military commissions, by the time they're done, will have spent upwards of a billion dollars, and that's just the commissions to try, you know, less than a dozen defendants compared to the fairly modest costs of Article 3 courts trying the same individual. So, you know, I agree. I don't think the costs are going to push the needle one way or the other, but I do think it's a relevant point that we are spending an awful lot of money where there's actually, you know, a perfectly available different version that would actually be much cheaper.

KAYI'm Katty Kay of the BBC. You're listening to "The Diane Rehm Show." And if you'd like to join us, do call 1-800-433-8850. Is the phone number. You can email us, as well, and that is drshow@wamu.org. You can find us on Facebook. You can send us a tweet. Let's go to the phones now, to Jay in Madison, Connecticut. Jay, you've joined "The Diane Rehm Show."

JAYHi, good morning, thank you for taking my call. The thing that I find missing in all of these arguments is justice. I keep hearing debates about whether it's appropriate to leave the prisoners in Guantanamo or bring them to the U.S., but in the course of, you know, a decade or more of their incarceration, they've never been brought to trial, and it kind of begs the question, well, why is that.

JAYIt seems to me that they've never been brought to trial because there simply isn't evidence. And what winds up happening to these people is that they're denied basic human rights and any notion of justice. And justice, apparently, you know, we hear from our Republican legislators, like the one that was on earlier, that justice is only Americans. If you've not an American, then you're just out of luck.

KAYAnd Jay, I want to put your comments to Marc Thiessen, and, you know, we were talking about this, Marc, at the beginning of the program, and I think it's probably worth outlining how many of the people have actually been tried, how many have been found guilty, how many have been sent back home and whether there are people in Guantanamo Bay and have been people in Guantanamo Bay that were subsequently found not to have been guilty.

THIESSENYeah, I think this whole conversation is surreal because the point is we're talking about this as if this was a law enforcement effort. This is not. We are at war. This is not about justice. This is not about putting people on trial after they've committed crimes. The purpose of Guantanamo Bay is to have a detention center for enemy combatants. The president of the United States acknowledges that we are at war. He is operating under an authorization for the use of military force. We're at war with al-Qaeda. We're at war with ISIS.

THIESSENAnd we don't -- and we do not have, under his policies, a detention facility to hold enemy combatants at a time of war. So these people are not criminals. I don't care about KSM being tried. I don't care about how long it takes for them to be tried. What we -- the problem we have in the war on terror today is that we -- Barack Obama has stopped capturing senior terrorist leaders alive and interrogating them to find out information about plots they have to kill the American people.

THIESSENAnd so what he's doing is he's droning them. The reason we don't have more people coming into Guantanamo Bay today is President Obama is murdering all of them with drones from the sky. Now that's fine, I have no problem with a terrorist being vaporized by a drone, but the problem is that when you vaporize a terrorist with a drone, you vaporize all the intelligence they have in their brains. We need that information in order to protect the American people and stop them from carrying out terrorist attacks.

THIESSENSo the president of the United States wants to -- he shut down the CIA interrogation program. He wants to shut down Guantanamo Bay. But we're at war, and he has not proposed any form of detention and interrogation facility where we can take enemy combatants who we can't see from spy satellites...

WELNAMarc, Marc, this is David.

KAYDavid Welna.

THIESSENNineteen guys with box cutters, how do you stop that unless you get the terrorists to tell you what their plans are?

WELNARight, the thing is, though, is we are trying these people. We have these military commissions that are set up to try them. And as the chief prosecutor Mark Martins says, there is a presumption of innocence.

THIESSENSure.

WELNASo as much as you might say that we're at war, there is also an effort to adjudicate these people, but it's only a very partial effort and one that has been enormously unsuccessful to date.

THIESSENAnd it's of secondary importance. The primary importance is to put -- first of all, the president has said there are certain people there who may never be tried and also can be held indefinitely because they are enemy combatants in a time of war. I mean, let's keep in mind these people are in Guantanamo Bay because they attacked the United States of America, or they were captured plotting to attack the United States or they...

VLADECKOr because, or because we paid bounties to the Northern Alliance to pick up these folks...

THIESSENCome on, Barack Obama and the Justice Department have gone through with a fine-toothed comb every single person who is in that facility. There are no goat herders.

VLADECKBut so Marc, so Marc, what is it, Marc, what is it?

THIESSENThere are no goat herders in Guantanamo Bay...

KAYOne second, Marc.

VLADECKBut so Marc, what does it say to you that the periodic review boards, that are only reviewing the detainees who are still there after 15 years, after the Bush administration released over 500 detainees, after the Obama administration cut the population from 242 to 91, what does it say to you that 18 of the 21 detainees who got periodic review boards were found to no longer pose a threat to the United States and therefore eligible for release? Does that mean that these guys can still be held in perpetuity?

THIESSENThe periodic review boards have consistently gotten it wrong. We have terrorists who are leaders of al-Qaeda in the Arabian Peninsula, have gone back to become leader in the fight in Afghanistan...

VLADECKWho have been cleared by a PRB?

THIESSENWho have been -- who lie to the periodic review boards and who have found to have gone back and been senior commanders and have gone back and killed American citizens.

VLADECKSo let me put it to you, there's not a single example...

THIESSENMy question, now hold on, you asked me to answer you, so I'm answering you. My question to you is, what is your plan to detain terrorists under the laws of war? What do you support to detain terrorist not under law enforcement but under the laws of war? You don't have a plan.

KAYMarc, one second.

VLADECKI'm happy to answer that. So I am not opposed to any military detention going forward, unlike some of my friends on the left. I think the government does have the authority to hold at least some individuals under the laws of war. We've done it in the United States. I mean, the Charleston, South Carolina, Naval Brig is where we held three different enemy combatants for a period of time. So we have the authority. The point I would just make to Marc is we are still picking up people overseas, we're interrogating them, and then we're trying them in civilian courts. That's what we should do.

THIESSENWe've done a few.

KAYOkay, Steve Vladeck, David Welna, I've got Marc Thiessen on the phone with me, stay with us for more of our conversation on closing Guantanamo Bay, the prospects for it, 1-800-433-8850 is the phone number. We're going to take a quick break.

KAYWelcome back. I'm Katty Kay of the BBC sitting in for Diane Rehm. You've joined our conversation on the President's plan to close Guantanamo Bay. I'm joined in the studio by Steve Vladeck. He's a Professor at American University Washington College of Law. He specializes in National Security Law. David Welna is here. He's the National Security Correspondent for NPR. And Marc Thiessen is joining us on the phone. He's a Fellow at the American Enterprise Institute, a columnist for the Washington Post and author of "Courting Disaster."

KAYJust before we went to break, we were having a heated discussion about the -- no, it's great. I'm very glad to have a heated discussion on the program, about what we should do with the prisoners who are still in Guantanamo Bay. And I wanted to ask David, if we know how many of the people in total who have been sent to Guantanamo Bay should not have been sent there in fact. Do we have that kind of statistic?

WELNAWell, I think that the verdict of the periodic review boards is one that says there is no justification going into the future for holding these people any longer. And we've had, we've had many, many dozens of them released. 147 have been transferred under President Obama alone. More than 500 under President Bush. Those who were transferred under President Obama, the Director of National Intelligence, six months ago, said that there are only four known cases of people returning to the fight.

WELNANow yesterday, there was a report that Spanish officials...

KAYFrom Spain, right?

WELNA...picked up a former Guantanamo detainee who was released a dozen years ago under the Bush administration, who apparently was involved in trying to recruit people for ISIS. These cases happen, but they are in the tiny minority. If you have, under Obama, 96 percent of those transferred not known to return to the fight, I guess, it would be an argument they could make that many of these people are not worth holding.

KAYOkay, let's go back to the phones. Jeff in Cleveland Heights, Ohio. You're on the air.

JEFFGood morning.

KAYGood morning.

JEFFI was just curious, morning, I was just curious if you could tell me if Congress fails to act to do anything to close Guantanamo, which looks pretty probable, does the President have any possibility of doing an executive order to close it?

KAYGood question. Steve.

VLADECKSo, I mean, I think that there -- you'll get different answers from different Constitutional law scholars about whether he could do it as a part of his Constitutional authority. Certainly that's a kind of constitutional law argument we heard a lot during the Bush administration. This President has made very clear that he has no desire to contravene the transfer restrictions that Marc outlined. He said it. The Attorney General has said it before Congress. The Joint Staff in the Pentagon said it yesterday in a letter to Congress.

VLADECKSo, you know, whether he could, I think, is an academic question. I think, so long as these transfer restrictions are on the books, these detainees are not coming into the US. That's why we would need some buy in from Congress before we see any of these detainees getting moved stateside.

KAYDavid?

WELNAHowever, the White House spokesman, Josh Ernest, has been asked repeatedly over the months that this follows an op-ed by two former Obama Administration officials that argued that President Obama has in his power as Commander in Chief to simply order that these people be transferred. He, Josh Ernest, has been asked repeatedly whether President Obama would exercise such authority. And he has repeatedly refused to rule that out. So, I think that it is -- this was not necessarily a last ditch effort we saw yesterday. There may be some other executive action in the future.

KAYMarc, I know that you don't think that Guantanamo should be closed. If it were to be closed, if this was going to happen, what do you think would be the best way to do it?

THIESSENWell, I don't think it should be done.

KAYRight.

THIESSENAnd so, I don't think there is a good way to do it. I think it's a -- it would be a disaster. And the reality is is that every single Republican Presidential candidate, at least, has said not only that do they plan to keep Guantanamo Bay open, but they plan to begin using it again. That's the problem is that President Obama has not sent a single person to Guantanamo Bay in his almost eight years in office. Because we're droning everybody.

KAYRight, but...

THIESSENBut he doesn't have a detention policy.

KAYBut Marc, there are Republicans, senior Republicans, John McCain, Head of the Armed Services, Chairman of the Armed Services Committee, President Bush himself, back in 2006, who have suggested that Guantanamo should be shut.

THIESSENThey're...

KAYAre they wrong?

THIESSENSenator McCain is a minority on Capitol Hill and again, every single Republican running for President right now, who has any chance of winning, has said that they plan to use Guantanamo Bay. Marco Rubio has said that he's going to stop droning every terrorist he finds and send them to Guantanamo. I mean, the problem we have right now is we don't have -- we are at greater risk today than we were, even in the period before 9/11 because we do not have -- we are not interrogating and capturing senior terrorist leaders. Every time a senior terrorist leader is captured, is found and located, President Obama sends a drone to blow them up.

THIESSENThere have been two people captured alive on President Obama's watch that would be what you call high value detainees. They were interrogated for a couple of weeks on a Navy ship and then sent into the law enforcement system. That is very different from the situation we have. We got Khalid Sheikh Mohammed...

KAYDavid, how

WELNAI would dispute...

THIESSEN...who was a Professor of Jihad. He was giving us tons of information about his plots to attack America. We don't have that insight anymore.

KAYDavid.

WELNAMarc, actually, the number's 47, not two.

THIESSENNot high value detainees, absolutely not.

WELNAWell, actually these are people...

VLADECKBy the way, but not all the Guantanamo detainees are high value detainees by Marc's count.

WELNAYeah.

KAYDavid.

THIESSENNo, they're not. I agree with that. They're not all high value detainees.

KAYI'm going to play referee. David.

WELNARight, so, so this process of interrogation has been going on. There is actually a task force that is set up for that. And the fact that you have two people who have been in the news doesn't mean that you don't have 45 others who have also been interrogated. But it's true that President Obama has been using drones much more than President Bush did to go after suspected terrorist leaders, but at the same time, it isn't as if the other side of this process, of getting intelligence from them, has been completely shut down.

THIESSENI think you're wrong, David. I mean, first of all, President Obama has issued an executive order that bans secret detention. So, there is no secret detention of detainees. If there is a high value detainee captured, they have to tell us.

KAYOkay.

THIESSENSo, there are only two people that have been in the news, unless they're having secret detentions and have some secret black sites somewhere, there are only two high value detainees that have been actually captured and questioned.

KAYLet's go to Vicky who is joining us on the phone from Cleveland, Ohio. Vicky, you're on the air.

VICKYHi, thanks for taking my call.

KAYYou're welcome. Thank you for waiting.

VICKYI am a Criminal Defense lawyer here in Cleveland, Ohio, and I actually represented some of the detainees at Guantanamo from about 2008 to about 2011. And I actually take quite exception with the attitude by some of your, especially the Congressman and some of your guests that somehow, Criminal Defense Lawyers are taking advantage of the criminal justice system in order to protect the rights of these people. And, you know, it's just dumbfounding me that the, that our Constitution is being -- the fact that criminal defense lawyers are trying to use justice and trying to bring to light some of the injustice that happened to those men.

VICKYAnd Guantanamo is somehow taking advantage and somehow being demeaned and somehow not legitimate. It's really quite appalling that we -- that attorneys that had blazed the trail before to -- had to go all the way to the Supreme Court to get rights for these men to even litigate. There were -- the vast majority of the people that were picked up on the quote unquote battlefield were not connected to any terrorist activity. As somebody had pointed out before, there were bounties paid by the United States, paid by the CIA to encourage people to turn people in who had nothing to do with 9/11.

VICKYHad nothing to do with any terrorist attack. Had never even thought about it, and now, because of the conditions that they've been confined in on Guantanamo, they are now being turned into terrorists. They are now being -- they're distrustful and as a public defender, I was distrusted by these gentlemen, even though I was there to help. Because I worked for the federal government and therefore, I must be part of the conspiracy against them. And I don't blame them.

KAYOkay, Vicky raises a very good point there. And we see this in prisons here in the United States, as well. There is a certain radicalization element that goes on. And David, I imagine that that must have been the case in Guantanamo Bay, as well. We certainly see it in the UK where there is a big population of Muslim inmates and that is where a lot of the radicalization takes place.

WELNAYeah, it's hard to measure how much of that has gone on, but I think that the question of Constitutional rights is still somewhat open down there. They have been found to have the right to habeas corpus, but it's never been clear in these military commissions whether these defendants actually enjoy full US constitutional rights or not. And this military commissions court, there is not even a currently constituted appeals court for that court. So, this whole process is -- has the aura of being improvised and completely untested.

KAYSteve.

VLADECKThe want for here is legitimacy. And, you know, Marc and I, I think, are gonna never agree on what the right answer is, but I think we can both agree that it's in the United States' interests for the detention operations at Guantanamo, for the military commissions, to be legitimate as possible. And the more that we have these questions about basic constitutional application, the more that we have these difficulties, the more that we have these, you know, efforts by individuals to make it look like the lawyers are, you know, manipulating the system, the more these proceedings look illegitimate.

THIESSENAnd it seems to me that the government is just as invested in making everything at Guantanamo look as legitimate as possible as its critics. And so I don't why this has to be such a fight.

KAYMarc, can we agree?

THIESSENNo, we cannot. So, you know...

KAYI thought I had us there, for a second.

THIESSENI thought we had -- I'll tell you why I find this conversation slightly surreal. My mother fought against the Nazis in the 1944 Warsaw uprising. She was part of the insurgency that took the city of Warsaw back from the Nazis for 64 days in that country. And after Warsaw fell, she was taken prisoner, and she followed the laws of war. She wore a uniform. She followed all the laws of war, didn't target civilians. And she was taken prisoner and sent to a prisoner of war camp in Germany and liberated by Patton.

THIESSENShe was never given a criminal defense attorney. She was never offered the right of habeas corpus. So these terrorists, who violate the laws of war as their primary way of carrying out war. They do not wear uniforms, they do not carry their weapons openly. They hide among civilians, they target civilians. Everything that the Geneva Convention stands for, they violate. And somehow, we're more worried about their civil rights and they're getting more rights than my mother got who followed the laws of World War II.

VLADECKSo, Marc's argument is we should treat them like the Nazis treated Jews.

WELNAThese are suspected terrorists. They are not...

THIESSENThey're not suspected terrorists.

WELNA...they've never been adjudicated.

THIESSENThey're not...suspect is a law enforcement term. Suspect is a law enforcement term. There's no such thing as a suspected prisoner enemy combatant.

VLADECKYes there is. The Geneva Conventions talk about -- article 5 of the...

WELNAWhy are they being put on trial?

THIESSEN(unintelligible) battlefield.

VLADECK...article 5 of the Geneva Convention specifically raised the prospect of individuals whose status is reasonably in doubt at the time that they're captured. Given how many of these guys were not...

THIESSENYes, and there's a process of weeding those people out.

KAYOne second, Marc. One second Marc.

VLADECK...that's right. There's a process. So as, so you conceded that there needs to be a process to make sure that these individuals are who we say they are.

THIESSENNo.

VLADECKAnd so many of these guys were captured off the battlefield that I don't know that you can just stick the label on them because the White House and Defense Department says so. We've learned too much to the contrary over the past 15 years to still take that, their word for it.

KAYI'm Katty Kay of the BBC. You're listening to The Diane Rehm Show. 1-800-433-8850 is the phone number which gets us to an email from Kim in Greensboro, North Carolina. What does the International Court of Justice and/or the United Nations say about the detention center? David.

WELNAWell, I think the UN put out a statement yesterday lauding President Obama's effort to close the prison in Guantanamo. This is something that does not square with a lot of international law and we heard from the Congressman that he doesn't put much stock in international law. However, the US is a signatory to international treaties. And it does seem in many instances, it's in conflict with those treaties.

KAYOkay, let's go to Adam in Atlanta, Georgia. Adam, you've joined the program.

ADAMThank you very much for taking my call.

KAYOf course.

ADAMThe reason I was calling is I was listening to the argument and how Obama has made his statement that he wants to bring them to US soil. This really, to me, seems like more or less a referendum on the American justice system in itself. Whether you are on the right side of the aisle or on the left side of the aisle, each and every one of us knows someone who was convicted of a crime, wrongly or released when they clearly should have been convicted. Everyone that I have met, at some point, has said, look, there's clearly enough evidence this person did it.

ADAMBut our system is set up so that better 10 guilty men go free than one innocent man be convicted. So, is America willing to risk releasing 10 terrorists to prevent one person who may not be a terrorist from being wrongly convicted? Because when these guys kill, they don't just kill one person.

KAYOkay, Adam, I'm going to put your question to Steve Vladeck.

VLADECKSo, I mean, I think there are a lot of premises in that question that I would resist. Including the notion that all these guys are terrorists. No one is talking about releasing these detainees into the United States. The folks who have been released by the Obama administration have been transferred to other countries under security conditions only after they've convinced a periodic review board that they no longer pose a threat. As David pointed out earlier, the recidivism rate among those released, former detainees, is much, much lower than the releases during the Bush Administration.

VLADECKWhich did not come with nearly the same kind of scrutiny that we're getting these days. So, you know, I think it's a false metaphor, it's a false parable to suggest that this is letting 10 terrorists go free so that one innocent one might not.

KAYDavid, let's talk a little bit. We haven't talked about what would happen to these detainees if they were removed to the United States. And the suggestion has been to put them into some of the most highly secure prison here on US soil. Well, that's the supposition. The Obama plan doesn't actually say where they would go. But that is meeting resistance from, for example, both Republican and Democratic Senators in Colorado where one of these facilities is.

WELNAWell, and also from some human rights groups, who say this would be Guantanamo North. You would still have the situation of indefinite detention for detainees who have not been charged with a crime. At least in some of these cases. Now, those who object because of not in my backyard issues, I've gone out and talked with them. Actually these communities are somewhat divided over the question. There are many people in places like Fort Leavenworth and also in Florence, Colorado who say, you know, we're perfectly able to deal with people like this.

WELNAAnd we have the military right nearby, in case there were any attempt by their comrades in arms to come and liberate them or have retribution.

KAYIs that the security concern that is most commonly raised, that these facilities would themselves then become targets?

WELNAYes. That the communities next to the facilities where the jailers live would be targets. That's the big concern among people. But I think it's most likely that if this were ever to happen, these detainees would be transferred to a military installation. Not a civilian prison. And at a military installation, you would have, by definition, a lot of armed military people to secure it.

KAYWe have just one minute on the show, so I'm going to ask you all to be concise. But I'm asking you this question. Do you think that Guantanamo Bay will be closed? Marc Thiessen.

THIESSENNo, it will not be closed, because unless the President does something unlawful, and violates the expressed will of bipartisan majorities in Congress, it will not be closed. And I predict that the next President of the United States is going to be sending ISIS terrorists to Guantanamo Bay and it will be a strategic interrogation facility again.

KAYSteve Vladeck.

VLADECKOnly if a Democratic nominee wins the Presidency in November and the Democrats pick up seats in the Senate and the Republican lame duck Congress would rather make a deal this time around than with Hillary.

WELNAAnd I would say unless President Obama uses executive authority and orders that these prisoners be transferred to the US, very soon, he has only 11 months left in office, there won't even be time to close the prison and make good on his campaign promise to do so.

KAYWell, technically, he could, in a lame duck session, start the process, sign the order.

WELNAHe could start the process and it would depend on who gets elected in November on whether that process would be finished.

KAYOkay. David Welna, National Security Correspondent of NPR, Steve Vladeck, Professor at American University Washington College of Law, Marc Thiessen has been on the phone joining us from the American Enterprise Institute. Gentlemen, thank you very much for a fascinating and feisty discussion.

VLADECKThank you.

THIESSENThank you.

WELNAYou're welcome.

KAYI'm Katty Kay of the BBC sitting in for Diane Rehm. Thanks so much for listening.