Westlaw. 3/11/05 NYT A1 The New York Times Page 2 The proposal comes as the Bush administration reviews the future of the naval base at Guantanamo as a detention center, after court decisions and shifts in public opinion have raised legal and political questions about the use of the facility. The White House first embraced using Guantanamo as a holding place for terrorism suspects taken in Afghanistan, in part because the base was seen as beyond the jurisdiction of United States law. But recent court rulings have held that prisoners there may challenge their detentions in federal court. Indeed, the Pentagon has halted, for the last six months, the flow of new terrorism suspects into the prison, Defense Department officials said. In January, a senior American official said in an interview that most prisoners at Guantanamo no longer had any intelligence value and were not being regularly interrogated. The proposed transfers would represent a major acceleration of Pentagon efforts that have transferred 65 prisoners from Guantanamo to foreign countries. The population at Guantanamo includes more than 100 prisoners each from Afghanistan, Saudi Arabia and Yemen, a senior administration official said, and the United States might need to provide money or other logistical support to make possible a large-scale transfer to any of those nations. Defense Department officials said that the adverse court rulings had contributed to their determination to reduce the population at Guantanamo, in part by persuading other countries to bear some of the burden of detaining terrorism suspects. Under the administration's approach, the State Department is responsible for negotiating agreements in which receiving countries agree "to detain, investigate, and/or prosecute" the prisoners and to treat them humanely. "Our top choice would be to win the war on terrorism and declare an end to it and repatriate everybody," a senior Defense Department official said in an interview. "The next best solution would be to work with the home governments of the detainees in order to get them to take the necessary steps to mitigate the threat these individuals pose." The official, who spoke on condition of anonymity, said that future transfers into Guantanamo remained a "possibility," but made clear that the court decisions and the burdens of detaining prisoners at the American facility had made it seem less attractive to administration policymakers than before. "It's fair to say that the calculus now is different than it was before, because the legal landscape has changed and those are factors that might be considered," a senior Defense Department official said. In addition to working to transfer prisoners to their home countries, either to face charges there or simply to be kept in detention, officials also hope to shed dozens of prisoners whose cases are being studied by special review boards. Westlaw. 3/11/05 NYT A1 The New York Tinies Page 3 Those three-member military boards began working in earnest in January to determine which prisoners are no longer a threat, have no information of value and may be released outright. At its peak, the population at Guantanamo exceeded 750 prisoners. But the last time prisoners were transferred there was on Sept. 22, 2004, when a group of 10 was transferred from Afghanistan. The United States has already dispatched 211 Guantanamo prisoners, releasing the majority of them. Sixty-five have been transferred to the custody of other counties, including 29 to Pakistan, 5 to Morocco, 7 to France, 7 to Russia, and 4 to Saudi Arabia. The administration's policy of detaining suspected terrorists at Guantanamo has relied on declarations that the detainees are unlawful "enemy combatants," based on assertions that they did not serve in a conventional army, and thus did not qualify for the protections listed in the Geneva Conventions. Administration lawyers argued successfully in lower federal courts that United States laws, including access to the courts, did not apply because Guantanamo is part of Cuba. But last June, the Supreme Court ruled that United States law applied to Guantanamo and that prisoners there could challenge their detentions in federal courts. In August, a federal district judge ruled that the Geneva Conventions apply to Guantanamo prisoners and that the special military commissions to try war crimes were unconstitutional. The government's appeal of that ruling is scheduled to be heard next month. Even as it moves to reduce the population at Guantanamo, the Pentagon has asked Congress for another $41 million in supplemental financing for construction there, including $36 million for a new, more modern prison and $5 million for a new perimeter fence. The purpose, Defense Department officials said, was to provide a secure, humane detention facility for a remnant of the current population who are expected to remain there for the foreseeable future. As many as 200 of those now at Guantanamo will most likely remain there indefinitely, the officials said, on grounds that they are too dangerous to be turned over to other nations or would probably face mistreatment if returned to those nations. Each of the roughly 540 prisoners at Guantanamo have gone before a three-member military board, to have their status as enemy combatants reviewed. A final review has been completed in 487 cases; of those, all but 22 were found to have been properly classified, a status leaving them subject to possible war crimes charges. Unlike the Pentagon, the C.I.A. was authorized by President Bush after the Sept. 11 attacks to transfer prisoners from one foreign country to another without case-by-case Westlaw. 3/11/05 NYT A1 The New York Times Page 4 approval from other government departments. Former intelligence officials said that the C.I.A. has carried out 100 to 150 such transfers, known as renditions, since Sept. 11. By contrast, the transfers carried out by the Pentagon are subject to strict rules requiring interagency approval. Officials said that the transfers do not constitute renditions under the Pentagon's definition, because the governments that accept the prisoners are not expected to carry out the will of the United States. Indeed, officials have been concerned that transfer of some detainees could threaten American security because they might escape from foreign prisons or the foreign governments might free them. The White House has said its policy prohibits the transfer of prisoners to other nations if it is likely they will be tortured, and administration officials said the interagency review is intended in part to enforce that standard. Transfers have been approved by the State Department to countries including Saudi Arabia and Pakistan, identified in the department's own human rights reports as nations where the use of torture in prisons is common. Administration officials said that American diplomats in those countries were responsible for monitoring agreements to make sure prisoners were not mistreated. The senior Defense Department official said that the difficulty of "gaining effective and credible assurances that prisoners would not be mistreated had been "a cause of some delay in releasing or transferring some detainees we have at Guantanamo." It is possible that Guantanamo inmates could petition a federal court to stop a transfer to a country where they did not want to be sent. But there is little if any precedent to suggest how the courts would rule. In November, a lawyer for Mamdouh Habib, a prisoner who claimed he had been tortured in Egypt before being transferred to Guantanamo, asked a federal district court to stop the Bush administration from returning him to Egypt. Before the court ruled, he was sent to Australia in January and freed. Photo: Defense Secretary Donald H. Rumsfeld is said to have sought broader support from other governmental agencies for transfers of detainees. (Photo by Doug Mills/The New York Times) (pg. A10) Chart: "Transferred From Guantnamo" While roughly 540 detainees are still being held by the American military at Guantnamo Bay, Cuba, 211 detainees have left. Of those 211, 146 have been released, and 65 have been transferred to other countries for further detention or for prosecution. Detainees transferred from Guantnamo to other countries To Pakistan: 29 March 15, 2005, Tuesday - A front-page article on Friday about the Pentagon's efforts to send prisoners to other countries from Guantanamo Bay, Cuba, referred incompletely to legal proceedings in a recent case involving Mamdouh Habib, who had asked the Federal District Court in Washington to prohibit the government from sending him to Egypt. In November, a judge denied Mr. Habib's request but gave him permission to renew it if the government ordered his transfer there, and required the government to give advance notice of any such transfer. Mr. Habib was later sent instead to Australia, where he was released. 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