This is part 1 of a two-part report.
Ever since President Obama took office, government lawyers have been obsessing over a hypothetical scenario: If American troops pick up a top al-Qaida terrorist overseas and the U.S. wants to hold him for interrogation without putting him on trial, where should Americans put him?
From his first full day in office, Obama ruled out the most well-known place to hold detainees indefinitely, ordering Guantanamo closed by January.
In a speech earlier this year, Obama said Guantanamo "likely created more terrorists around the world than it ever detained." And even though administration officials have publicly acknowledged that they may not meet their deadline to close the base, it seems certain that they will not bring new detainees there.
What has not been public until now is that while President George W. Bush was in office, people in the administration who wanted to close Guantanamo won this debate. According to former government officials, there was a disagreement during Bush's second term about where to put new terrorism detainees.
Gordon England, who was then deputy defense secretary, argued for Guantanamo Bay. He said it was safe and transparent, and that stories about secret prisons were hurting the Bush administration.
Two other Bush officials fought against bringing people to Guantanamo. Matthew Waxman, who ran detainee affairs at the Pentagon, and John Bellinger, who was legal adviser to the State Department, argued that the time had come to close the prison. The revolving door at Guantanamo should be exit only, they said. Waxman and Bellinger prevailed, and no new detainees have arrived at Guantanamo since 2006.
Another option for detaining terrorists captured overseas is the United States. President Obama has said he wants to move Guantanamo prisoners here, but there are political obstacles.
In a speech on the House floor last week, Rep. Hal Rogers (R-KY) said, "These are enemy combatants sworn to kill you and every American they can find, and you want to bring them to the U.S.? It's insane!"
Rogers introduced a nonbinding resolution to keep all Guantanamo detainees out of the U.S.
It passed 258 to 163.
On Wednesday, the House and Senate reached a compromise that would let Guantanamo detainees come to the U.S. for trial. Even so, people in the administration say the political hurdles to transferring detainees here means bringing terrorists from foreign countries in the future is basically out of the question unless the political winds shift.
Bagram Air Base
Human rights officials have begun calling another option for imprisoning detainees overseas — Bagram Air Field in Afghanistan — "Obama's Gitmo." Bagram houses about 600 detainees, including some from foreign countries.
"Obama is reserving Bagram to be used the exact same way as Bush used Guantanamo," says Tina Foster, who represents a group of Bagram detainees for the International Justice Network.
In fact, current and former officials say, the situation is more complicated than at Guantanamo. Several people from both the Bush and Obama administrations have confirmed to NPR that the United States has a formal agreement with Afghanistan's government that says the U.S. can bring detainees to Bagram from outside Afghanistan, but the Afghan government has the power to reject specific detainees.
During one incident late in the Bush administration, officials say, a terrorist from Somalia was brought to Afghanistan without the Afghan government's consent. The officials say it created a diplomatic rift, and the Afghans gave the U.S. days to get the detainee out of the country. Ever since, officials say, it has been more difficult for the U.S. to bring people from outside of Afghanistan to Bagram.
At different points, the Bush administration used Guantanamo, the United States and Bagram to hold detainees. Because all of those possibilities are problematic, the Obama administration is now thinking more creatively about this issue.
The options they are considering are not traditional American-run prisons. We will explore those possibilities Thursday on All Things Considered.