Published: November 30, 2008 10:22 am      

Hamdan and Guantanamo

Seven years ago this November, President Bush established rules for the detention and trial of suspected terrorists. This past week, one of the best-known terror detainees returned home to his native Yemen. The repatriation of Salim Hamdan, one-time driver and bodyguard for Osama bin Laden, underscores some of the unsettled questions surrounding the Guantanamo Bay detention center and the roughly 250 terror suspects who remain there.

Hamdan’s fame, or infamy, stems not from his status within al-Qaida, but rather from Hamdan v. Rumsfeld, the 2006 Supreme Court case that led to a rewriting of the rules under which those held at Guan-tanamo could be tried. Among the first detainees formally charged under the initial rules, Hamdan has now become the first to be found guilty and sentenced under the revised rules and subsequently repatriated (Australian detainee David Hicks was sent back to his homeland after a plea bargain). He will serve the remainder of his five-and-a-half-year sentence — less time served at Guantanamo — in a Yemeni prison, with a scheduled release on Dec. 27.

President-elect Barack Obama campaigned on a pledge to close down Guantanamo, as did his Republican rival Sen. John McCain. But as many have pointed out, the central problem is not the prison itself or where it is located, but the rules that govern the fate of its inmates. The case of Hamdan illustrates a number of the questions that President Obama will need to resolve if he is to make good on that campaign pledge.

The overarching question for all detainees is what brand of justice they are entitled to. Civil libertarians generally want to bring detainee trials in line with standard U.S. criminal proceedings. But since the treatment of those captured by the U.S. has been, from the beginning, so far out of line with constitutional norms — including torture — that course could mean that even the worst suspects could have their trials overturned and evidence denied on procedural grounds. Defense access to security-sensitive evidence and witnesses also would be an obvious problem with this approach.

For those whom the U.S. decides to formally charge, some sort of further modified court system will probably have to be developed, perhaps hewing closer to the civilian model but with allowances made for the extraordinary nature of these prisoners. That will take legislation — and legislative energy from an Obama team already facing an extraordinary set of challenges at home and abroad.

Those whom the U.S. decides to let go, or those who are sentenced and serve their time, pose another set of questions. Despite his sentence, the Pentagon maintained that it had the right to detain Hamdan indefinitely as an unlawful enemy combatant. That the Bush administration chose not to do so is interesting, as is the fact that he was returned to Yemen.

Nearly 100 of those remaining at Guantanamo are Yemeni citizens, a thorny issue in its own right. Yemen’s government, like many in the region, has complicated allegiances when it comes to terrorism, working with the U.S. at times in anti-terrorism efforts but reluctant to be seen doing so in a society where holy warriors are revered. The U.S., meanwhile, seeks assurances that repatriated prisoners won’t go back to being terrorists. There is also, where certain detainees are involved, the question of whether sending them home would subject them to torture.

Seven years ago, President Bush opened a new and difficult chapter in U.S. legal history. As Salim Hamdan completes his sentence in Yemen, it’s becoming apparent that unraveling this legacy will involve more than shutting down its most controversial symbol.