As the Obama administration prepares to announce that it will try some of the detainees being held at the detention center at Guantanamo in U.S. federal courts, opponents of the plan are ratcheting up their criticism.
Critics like Michael Mukasey, former Attorney General for the Bush administration, say that the men who plotted 9/11 weren't deterred by the prospect of being tried in federal courts.
"At least those moving this process forward," Mukasey wrote in a recent article in the Washington Post, "should consider whether the main purpose here is to protect the citizens of this country or to showcase the country's criminal justice system, which has been done before and which failed to impress Khalid Sheik Mohammed."
Sens. Sen. Lindsey Graham, R-S.C., John McCain, R-Ariz., Joe Lieberman, I-Conn., and Jim Webb, D-Va., failed last week to push through an amendment that would have prohibited the prosecution of any individual suspected of involvement with the Sept. 11 attacks on the United States from being tried in Article III courts.
The unveiling of the administration's plan will be the first time the administration reveals how many detainees it expects to prosecute, release or continue to detain.
In a speech last May, President Obama laid out his vision regarding the ultimate closure of Guantanamo and said, "We do not have the luxury of starting from scratch. We are cleaning up something that is -- quite simply -- a mess."
Five months later, supporters and critics are eager to see the administration's plan to extricate itself from Guantanamo after years of criticism at home and abroad.
So far the administration has refused to release specific information, but in different forums it has laid out what it believes to be its options.
Officials have undertaken a case-by-case review of each detainee and plan to outline whether the charged detainees will go to federal court or a military commission. Traditionally military commissions were designated for classic law of war offenses, while federal courts were reserved for traditional federal crimes. In theory, military commissions are less stringent on issues such as the quality of evidence that may have been obtained in the heat of war. Military commissions have also been preferred as a more secure method to protect sources and methods of intelligence gathering.
But Bush administration attempts to use such commissions to prosecute were largely unsuccessful due to lengthy legal challenges and a growing sentiment at home and abroad that the commissions were unfair.
The Obama administration decided early on to push for prosecution in federal court but to keep open the option of using military commissions for some cases. This decision angered some who felt the commissions should be scrapped altogether.
"The military commissions are hopelessly associated with what went wrong in Guantanamo," said Tom Malinowski of Human Rights Watch.
"Even with improved protections, any conviction in a military commission is likely to be subjected to lengthy legal challenges and international criticism. It's especially important that the administration not use them for the key 9/11 trials, because we need the world to focus at long last on what these men are accused of doing to us, rather than on how we are treating them," he said.