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.
Olson advocates the use of federal courts for all those charged. "Since 2001 the federal courts have tried over 145 terrorism suspects. The system does not hinder convictions and the federal courts guarantee the protection of defendant's rights."
But in his May speech the president said he wanted to work with Congress to bring the commissions "in line with the rule of law."
Obama said, "The rule will no longer permit us to use as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify."
Congress passed several amendments to the Military Commissions Act as part of the National Defense Authorization Act for 2010.
In congressional testimony last summer David Kris, assistant attorney general for national security, said that the administration will avoid "abstract bright line rules" regarding which forum for prosecution will be used. He said the administration will rely on federal courts and military commissions, "both effective, both legitimate" and that professionals will make the choice for each case "using flexible criteria established by policy-makers."
Obama Administration Struggles to Find Countries to Take Detainees
Earlier in the summer the Obama administration transferred Ahmed Khalfan Ghailani, to the United States for his involvement in the '98 bombings of US embassies in Kenya and Tanzania. Other terrorists such as Ramzi Yousef, a planner of the 1993 World Trade Center bombing and the so-called 20th hijacker, Zacarias Moussaoui, have been convicted in federal court.
In testimony this summer, Jeh Johnson, general counsel of the Department of Defense, said that the number of detainees approved for transfer to another country is "substantially north of 50." Already the administration has been furiously trying to find a third country for a handful of ethnic Muslims from China -- called the Uighurs—who the administration no longer believes are a threat. But finding countries willing to take former detainees has proved a prickly subject.
"Even for those who don't seem to pose much threat, it's very difficult to get other countries to open their doors, especially when our own government won't let any detainees into the United States," said Matthew Waxman of Columbia Law School, who served as deputy assistant secretary of defense for detainee affairs in the Bush administration.
He adds, "There are also many detainees from Yemen whom we believe are dangerous but we'd like to transfer. For them, the issue is we lack confidence that the government of Yemen can deal with them adequately, and no other country is willing to take them either."
Detainees to be Indefinitely Held
Perhaps the thorniest question of all is what to do with detainees who cannot be prosecuted yet the administration intends to continue to detain.
Obama has remained steadfast on the issue. "I am not going to release individuals who endanger the American people," he said in May. His options for dealing with the last group are limited and controversial.
"The signals the administration has sent suggest that it plans to continue holding some number of Guantanamo prisoners without charge, because the Bush administration's policies made them hard to prosecute, but that it does not intend to detain without charge suspected terrorists who may be captured in the future," said Malinowski.
Questions Remain Over Status, Numbers, and Risk Factor for Gitmo Detainees
Congress just recently passed legislation allowing the administration to bring onto U.S. soil those men that it plans to charge, but the legislation only dealt with those who were being criminally prosecuted.
"If the Congress continues to prohibit the transfer of detainees to U.S. soil for purposes other than prosecution, it will, ironically, leave the administration with little choice but to charge or release every prisoner in Guantanamo," said Malinowksi.
The administration has refused to break down the detainees by numbers. In July Navy Captain John Murphy told reporters in Guantanamo, according to press reports, that military prosecutors were ready to proceed with cases against 66 detainees. The looming question is how many detainees might indeed be left uncharged.
Says Waxman, "There are no good options here -- every option has major downsides. Simply moving detainees inside the U.S. without trial would open the Obama administration up to charges that it's merely transferred the Guantanamo problem inside our borders."
Legislation passed in September stipulates that the president shall inform Congress, in classified form, any plan regarding the disposition of a detainee. The plan presented to Congress needs to include a determination of risk that the individual might instigate an act of terrorism, the costs associated with the transfer and a notification to the governor of the state to which the individual will be transferred 14 days before the transfer.