What's Next for Gitmo Detainees?

Within days the Obama administration will unveil its first concrete plans detailing how it will close the detention center at Guantanamo Bay and what it intends to do with the 220 detainees still being held at the naval base.

One of President Obama's first acts was to sign an executive order with a January 2010 deadline to close the detention center, but in the months that followed government officials realized the issue was fraught with complications. Deadlines have been pushed, and there has been a flurry of finger pointing as critics suggested the administration moved too quickly to set a deadline.

In September Secretary of Defense Robert Gates told ABC's George Stephanopoulos that the deadline would probably not be met. "It's going to be tough," he said.

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 major speech last May, 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.

Federal Court vs. Military Commission

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.

Federal Court vs. Military Commission

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.

"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.

Laura Olson, senior counsel for a think tank called the Constitution Project, said that military commissions -- despite reforms from Congress -- still do not afford defendants proper protections and have failed to produce convictions.

"In eight years we are on our third set of military commissions structure and only three people have been convicted," she said.

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