Bush Decides to Keep GuantÃ¡namo Open

By STEVEN LEE MYERS

October 21, 2008

Copyright 2008 The New York Times Company

WASHINGTON – Despite his stated desire to close the American prison at GuantÃ¡namo Bay, Cuba, President Bush has decided not to do so, and never considered proposals drafted in the State Department and the Pentagon that outlined options for transferring the detainees elsewhere, according to senior administration officials.Mr. Bush’s top advisers held a series of meetings at the White House this summer after a Supreme Court ruling in June cast doubt on the future of the American detention center. But Mr. Bush adopted the view of his most hawkish advisers that closing GuantÃ¡namo would involve too many legal and political risks to be acceptable, now or any time soon, the officials said.

The administration is proceeding on the assumption that GuantÃ¡namo will remain open not only for the rest of Mr. Bush’s presidency but also well beyond, the officials said, as the site for military tribunals of those facing terrorism-related charges and for the long prison sentences that could follow convictions.

The effect of Mr. Bush’s stance is to leave in place a prison that has become a reviled symbol of the administration’s fight against terrorism, and to leave another contentious foreign policy decision for the next president.

Both presidential candidates, Senators John McCain and Barack Obama, have called for closing GuantÃ¡namo and could reverse Mr. Bush’s policy, though probably not quickly since neither has spelled out precisely how to deal with some of the thorniest legal consequences of shutting the prison.

Mr. Bush’s aides insist that the president’s desire is still to close GuantÃ¡namo when conditions permit, and the White House has not announced any decision. But administration officials say that even Secretary of Defense Robert M. Gates and Secretary of State Condoleezza Rice, the most powerful advocates for closing the prison, have quietly acquiesced to the arguments of more hawkish advisers, including Vice President Dick Cheney.

A senior administration official who spoke on condition of anonymity to discuss the administration’s internal deliberations said it would be much harder to fulfill a campaign promise to close the prison than either candidate has stated. “This may not be the ideal answer, but what we are trying to do is work with the system we’ve got,” the official said.

Mr. Bush’s decision followed a review of the implications of the Supreme Court’s ruling in June that the 250 detainees at GuantÃ¡namo have the right to make habeas corpus appeals.

The ruling, Boumediene v. Bush, undercut a core rationale for keeping the prison off American soil, raising expectations that Mr. Bush might at last move to close it, a prospect he first raised in June 2006, when he said, “I’d like to close GuantÃ¡namo, but I also recognize that we’re holding some people that are darn dangerous, and that we better have a plan to deal with them in our courts.”

In August 2007, Mr. Bush said “it should be a goal of the nation to shut down GuantÃ¡namo,” adding, “But it is not as easy a subject as some may think on the surface.”

Mr. Bush has harshly criticized the ruling, including at least twice in fund-raising speeches for Republicans. When he met with his senior security advisers, no options for closing the prison were on the agenda, the administration officials said.

“This is an administration that believes very, very strongly in certain things it has done,” said Matthew Waxman, a professor at Columbia Law School who served in the Department of Defense overseeing detainee polices, “and GuantÃ¡namo is one that some administration officials at high levels believe was right all along.”

Mr. Cheney and his chief of staff, David S. Addington, have made it clear in the internal discussions this year that keeping GuantÃ¡namo open under a new president would validate the administration’s decisions dealing with terrorists, the officials said.

Closing GuantÃ¡namo would most likely mean abandoning prosecutions against some detainees and risking the release of others who still pose a threat to the United States and its allies.

An administration official who favors closing the prison suggested that the next president might reconsider after having access to the classified evidence that the Bush administration believes justifies the indefinite detention of dozens of detainees.

“The new president will gnash his teeth and beat his head against the wall when he realizes how complicated it is to close GuantÃ¡namo,” the official said.

Mr. McCain has suggested moving the detainees to Fort Leavenworth, Kan., home of the Army’s prison. His remarks prompted a letter in June from the two Republican senators from Kansas, Sam Brownback and Pat Roberts, objecting to the idea on a variety of grounds.

Mr. McCain’s campaign did not respond to requests for comments about GuantÃ¡namo. The Obama campaign declined to comment specifically, but in his platform, Mr. Obama promises to abolish military tribunals and conduct a review to determine which prisoners to prosecute, which to hold under the laws of war and which to release. His proposal does not specify where detainees would be held.

Other sites that have been mentioned include the United States Naval Consolidated Brig in Charleston, S.C., and the United States Penitentiary Administrative Maximum Facility, known as supermax, in Florence, Colo.

Beyond political opposition in those regions, the officials involved in the administration’s discussions said that bringing the detainees to American soil would allow additional legal challenges beyond habeas corpus and raise the prospect that judges could free them in the United States.

The prospect of that became more acute on Oct. 7, when a federal judge ordered the release of 17 Uighurs from China who were swept up in 2002 and held in GuantÃ¡namo. The administration had already dropped efforts to declare the men as enemy combatants, but refused to return them to China because of concerns about the treatment they would receive there, trying unsuccessfully to find a third country to accept them.

The judge, Ricardo M. Urbina of Federal District Court, ordered the detainees brought to his court in Washington to free them, but the Justice Department appealed and won a stay.

One official said that the Justice Department’s arguments – that the 17 men remained dangerous – complicated diplomatic efforts to find a country other than China willing to accept them.

The government’s lawyers filed the arguments for a continued stay on Thursday, and on Monday a federal appeals court refused to allow the Uighurs’ immediate release into the United States to give it time to hear the government’s full appeal.

Since the Supreme Court decision in June, Mr. Bush and his aides have remained focused on legal strategies for coping with the wave of habeas corpus appeals now flooding the federal court system and seeking new legislation that would allow the government to continue to hold foreign terrorists without charge.

A version of that legislation was introduced by Senators Lindsay Graham, Republican of South Carolina, and Joseph I. Lieberman, independent of Connecticut, two of Mr. McCain’s closest friends and advisers. But the legislation stalled and appears unlikely to be adopted during the current session of Congress.

The senior administration official involved in the deliberations said that the Supreme Court’s ruling did not grant judges the authority to release detainees in the United States, comparing it to allowing an illegal immigrant to live in the country legally without legal standing.

That official and others said that officials from the Department of Homeland Security, along with the Justice Department, have argued most vigorously for keeping GuantÃ¡namo open, largely because a ruling like the Uighur case could result in foreign fighters being freed into American communities.

“The federal courts have an absolute right to release these people, but the court didn’t say where, and what does that mean, to release them,” the senior official said.

“And in our view, the Supreme Court didn’t say, and the district courts don’t have the power, to order the United States to bring somebody from a foreign country – a foreigner – into the United States in complete disregard for our immigration law.”

Advocates for closing GuantÃ¡namo argued that Mr. Bush is still following the same flawed logic that has made it a reviled symbol, especially abroad.

Mr. Waxman, the former defense official, acknowledged the difficulties of closing the prison and the risks involved, but he argued that after seven years, a radical change was required.

“Whatever consequence they’re worried about,” he said of the administration’s concerns, “has to be weighed against the damage we continue to incur by keeping the status quo.”