What Now for Prisoners at Guantanamo Bay?

When Congress passed the latest defense appropriations bill Wednesday, it also may have ended any chance that there will be a federal criminal trial soon for Khalid Sheikh Mohammed. Thirteen months after U.S. Attorney General Eric Holder announced that the key 9/11 planner would be tried for terrorism, murder and conspiracy in Lower Manhattan, Congress formally banned any such trial for the confessed al-Qaeda chief or any of the other prisoners currently held at Guantanamo Bay, Cuba.

Lawmakers also forbade the Pentagon transfer of the Gitmo prisoners to the United States for any other purpose, blocked Defense Department spending on the building of domestic prisons for detainees, and imposed sharp limitations on the ability of the government to transfer the detainees to other countries. Each of these new restrictions will make it measurably more difficult for the Obama administration to close the prison in Cuba. And each reduces the power and authority of the executive branch to perform a traditional function: prosecute people accused of violating federal law.

But when President Barack Obama was asked about the closure of the prison during a press conference Wednesday afternoon, he did not mention (much less criticize) the extraordinary legislative effort undertaken to curtail the work of the Defense Department and the Justice Department in this area of terror law. Nor did he offer any details about an executive order, a draft of which is said to be circulating around the White House and Office of Legal Council, which would continue and and thus institutionalize the controversial Bush-era policy of "indefinite detention" for dozens of Gitmo prisoners. Instead, we got a holiday blend of Obama as law professor and commander in chief.

"I think we can do just as good of a job housing [detainees] somewhere else," the president said tepidly of Gitmo before explaining why administration lawyers are striving to change the rules governing the legal treatment of the dozens of prisoners there whom officials believe can neither be tried nor released. "Releasing [those detainees] at this stage could potentially create greater danger for the American people," the president said. "That's what this team has been looking at: Are there ways for us to make sure these folks have lawyers, to make sure that these folks have the opportunity to challenge their detention, but at the same time making sure that we are not simply releasing folks who could do us grievous harm."

Currently, 174 prisoners are at the Cuban prison. Of that number, approximately 48 are slated for "indefinite detention." The White House is said to be considering a set of rules that would grant these men far more due process rights than they received from military officials during the Bush administration. For example, they would have more access to attorneys and to some of the evidence against them. They would still be able to challenge their confinement in federal court, but they would also have to accept the verdict of quasi parole-boards staffed with officials from the military and, for the first time, from other agencies. Civil libertarians argue that none of this makes up for the "indefinite" part of these prisoner's "indefinite detention." Ultimately, the Supreme Court may have to decide.

In any event, for the time being that leaves approximately 126 Gitmo prisoners who still may be processed and prosecuted. What to do with these men is a fundamental question that official Washington will have to ponder when the 112th Congress convenes next month. For example, will the executive branch react to the narrowing of its power by Congress? Will it seek to get around the new law? Attorney General Holder was angry earlier this month when he realized that the lawmakers were serious about blocking his ability to prosecute men like Mohammed and Ramzi Binalshibh in federal court. But can and will the Justice Department do something about it? Holder said the congressional limitations were "unwise." He did not say they were unconstitutional. At least not aloud.

If there is a White House challenge to Congress over civilian terror trials (and I hope there is for the sake of precedent, if not principle), I suppose we'll be where we've been for the past year or so -- in unproductive stalemate. The attorney general keeps trying to remind people that hundreds of terrorists have been tried successfully in New York -- both before and after the terror attacks of September 11, 2001. But there has been a hardening of views toward these trials -- coinciding with the Obama presidency, for reasons I will leave you to ponder -- and it's hard to see how Holder and Company are going to change that dynamic without a great deal of bully pulpit help from the president. And he showed very clearly on Wednesday that he does not intend to spend a great deal of his political capital on this issue. Turns out that joblessness and the economy have in the end hurt even the Gitmo detainees, too.

That leaves us with the idea of revving up the military commissions system for Gitmo prisoners. As I have argued for nearly nine years, and as many others have more persuasively contended as well, if the administration provides these men fair tribunals there is little doubt that the results will be upheld by the Supreme Court. In other words, what crippled the Bush administration's plans to use tribunals was its short-sighted insistence upon unfair procedures that were short of the due process requirements the Supreme Court was willing to accept on behalf of the prisoners. At no point in any of the great post-9/11 rulings did any of the justices ever declare that they would not accept properly conducted commissions. It's also clear from the precedent that the closer those military trials look like federal civilian trials, the more likely they'll be upheld.

So the "draft" rules for "indefinite" detainees is a good start. The rights and access contemplated for those men should be granted to all Guantanamo prisoners to make the tribunal process fairer and thus more legally and morally defensible for the 126 defendants, including Mohammed and Binalshibh, who are just waiting to be tried. If Congress won't allow terror detainees to come to the United States for federal trials, in other words, then the Obama administration should bring more of the essence of those federal trials down to Guantanamo Bay.