One source familiar with discussions among transition officials said the executive order directing the detention center's closure could specify a time period of "within a year." An administration source suggested that there could be at least two other executive orders dealing with policies going forward and the implementation of interrogation techniques.
Earlier this month on "This Week," Obama outlined for George Stephanopoulos how difficult the closure would be: "I think it's going to take some time and our legal teams are working in consultation with our national security apparatus as we speak to help design exactly what we need to do. But I don't want to be ambiguous about this. We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our Constitution."
More than likely, the order will show that Obama is trying to turn a page from the Bush administration, but that he is going to leave himself some flexibility regarding how he plans to deal with the detainees.
"Look for the Obama administration to distance itself from the Bush administration but not as fully as some would like," says Matt Waxman, who served as deputy assistant secretary of defense for detainee affairs in the Bush administration. "Obama will want to make a break, but no president wants to give away presidential war powers."
In the motion filed last night, prosecutors laid out the administration's options: "Implicit in this review is the possibility that the administration may forgo prosecution in certain cases altogether, move prosecution of some or all cases to federal district courts, and/or make changes to the rules and procedures applicable to military commissions."
The administration is expected to take some time to tackle the thorny issue regarding the closure of the military base. The most pressing and difficult questions are what to do with those detainees too dangerous to be released who are, or might be, tried for war crimes and cannot be tried in federal court.
There are a variety of reasons why some of the detainees cannot be tried in federal court:
Some evidence could be tainted by improper interrogations.
There is strong intelligence linking individuals to al Qaeda, but it is not strong enough to stand up to a court standard of reasonable doubt.
The information might be good but can't be used in an open court setting without exposing national secrets.
There are practical problems associated with a court trial regarding issues such as witness availability.
The Obama administration is expected to lay out broad language regarding the preferred course for dealing with dangerous cases, as well as specifying that detainees who are no longer considered dangerous could be transferred to home countries or third party countries willing to accept them.
It is unlikely, but possible, that the new administration would in the first week expressly prohibit some interrogation techniques or refer to new legal parameters for the CIA program.
In his administration, Obama has tapped some fierce critics of the Bush administration's handling of the legal war on terror.