Closing Gitmo: Timing is Everything

In fact, the Defense Department says it has documented the cases of some three dozen detainees already released from Guantanamo who have been involved in subsequent violence and terror. One, a 30-year-old Kuwaiti named Abdullah Salel al-Ajmi, released from detention in 2005, joined two others in carrying out a suicide bombing in Mosul, Iraq, that killed seven last April.

Still, even Bush has long expressed his wish to close Guantanamo. At a press conference two years ago, Bush said, "I'd like to end Guantanamo. I'd like it to be over with. One of the things we will do is we'll send people back to their home countries. "

But that presents a host of problems, since many of those countries could subject the returning detainees to torture.

Even more vexing for the White House are all of the questions raised by the prospect of dozens, perhaps half, of the 260-plus detainees still at Guantanamo being freed by U.S. courts. Judges could order their release if they conclude the evidence against them is inadequate to justify their continued detention.

That evidence, much of it classified and obtained by military and CIA personnel on the battlefield, is not the standard kind of proof judges are accustomed to seeing in regular criminal cases here, administration officials say. The documents do not contain the kind of detail -- or include sources of that information -- that's typical in criminal cases, sources say. Could defense attorneys demand that the soldiers who detained them on the battlefield testify? That real possibility further complicates the matter legally.

Late last month, for example, a federal appeals court in Washington said the government failed to prove its case with one detainee from China. The judges said the evidence to hold him included events that "reportedly" occurred -- and had not included the sources of information.

The administration fears that's a sign of things to come -- federal judges viewing intelligence reports skeptically and finding them to be inadequate evidence. In light of the Supreme Court's ruling giving detainees even broader habeas corpus rights to challenge their detentions in court, the administration expects to lose some cases, sources tell ABC News.

"It's a ridiculous situation where we have this catch and release," said attorney Lee Casey, a former Justice Department official in the Reagan and Bush administrations. "I don't know how you fight a war on terror that way."

But what happens if some of the prisoners from Guantanamo are ultimately ordered released? White House spokeswoman Dana Perino told reporters today, "There is considered judgment, from many federal government lawyers, all the way up to the Attorney General of the United States, that it is a very real possibility that a dangerous detainee could be released into the United States as a result of this Supreme Court decision."

Earlier, at an off-camera briefing, Perino said, "We have to think very carefully about what we're going to do…That's one of the reasons that we have all of these very complicated questions that are unanswered. And that's one of them, the immigration piece of it, and what do you do?"

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