The administration has 11 months to decide how to handle the over 200 detainees remaining in Guantanamo Bay. The critical decision will be how to deal with those detainees who are considered too dangerous to release and too difficult to try in civilian court. As the administration dismantles the military commissions set up by the Bush administration it will have to find a process in or outside the current legal system with the ability to handle confessed terrorists such as Khalid Sheik Mohammed. It also has to find third-party countries willing to take on groups of detainees the administration is willing to release who cannot be sent home to their own countries out of fear they will be tortured.
The Justice Department has a March 23rd deadline to file papers on the case of Ali Saleh Kahlah al-Marri, the lone "enemy combatant" held in the United States. In 2003, President Bush signed an executive order declaring that al-Marri was "closely associated" with Al Qaeda and had "engaged in conduct that constituted hostile and war-like acts."
Unlike other enemy combatants held in the U.S. who were seized either on the battlefield or on a return trip from an alleged visit with terrorists abroad, al-Marri was living legally in Peoria, Ill., with his wife and five children when he was seized. He has been held as an enemy combatant for five years. The Supreme Court has agreed to hear his case and decide whether someone living here legally can be held indefinitely by the military without charges. The Obama administration asked for and received an extension to file its briefs in court and al-Marri's lawyer hopes Obama will reverse course from the Bush administration and either charge or release the prisoner.
The administration is also grappling with legal challenges from detainees being held in Bagram Air Force base in Afghanistan. After the Supreme court found that detainees being held in Guantanamo could challenge their detention in federal court, other detainees have tried for the same right. These challenges could be the next major legal frontier in detainee legal challenges, although experts believe courts may be very reluctant to extend U.S. constitutional protections to a foreign combat zone.
A watchdog group at the Department of Justice, the Office of Professional Responsibility, is working on the final draft of a report investigating Department of Justice attorneys in the Bush administration who provided legal guidance regarding interrogation techniques. Democratic Sens. Dick Durbin, D-Ill., and Sheldon Whitehouse, D-R.I., have asked for an update of the OPR investigation.
The senators issued a statement saying, "Our intelligence professionals should be able to rely in good faith on the Justice Department's legal advice. This good faith is undermined when Justice Department attorneys provide legal advice so misguided that it damages America's image around the world and the Justice Department is forced to repudiate it."
Holder will travel to Guantanamo with Matthew G. Olsen who he named last week to lead a new interagency task force to implement the executive order calling for a review of the status of each detainee. A final complication for the Obama administration is that in the days and weeks to come while it conducts its review, it will not have total control over the timing of decisions. Says Waxman, "Some ongoing litigation will force decisions sooner than would be hoped. Events on the ground may necessitate quick legal decisions, too."