Obama to Order Gitmo Shut Down
President's Order to Close Detention Facility Expected Thursday, Military Trials Suspended
By ARIANE de VOGUE, JAKE TAPPER, JAN CRAWFORD GREENBURG and DENNIS POWELL
WASHINGTON, Jan. 21, 2009—
President Barack Obama will sign three executive orders Thursday, to close the detainee camp at the Guantanamo Bay military facility within a year and to establish new rules and guidelines on interrogation methods and the treatment of detainees, sources who have seen a draft of the orders tell ABC News.
The detention center holds approximately 250 inmates, defined by the government as enemy combatants. White House counsel Greg Craig briefed members of Congress about the executive orders today on Capitol Hill.
Last night, just hours after he took the oath of office, Obama ordered Secretary of Defense Robert Gates to direct the chief prosecutor of the Office of Military Commissions to seek a continuance of 120 days for any case that has been referred to the office of military commissions and to cease referring any new cases for prosecution.
This morning, military judges hearing the cases of Khalid Sheik Mohammed, the self-confessed mastermind of 9/11, and his co-conspirators, as well as a different judge hearing the case of Canadian detainee Omar Khadr, granted the prosecution's motion.
According to the motion filed by the prosecutors, the continuance was requested "in order to provide the administration sufficient time to conduct a review of detainees currently held at Guantanamo Bay, Cuba, to evaluate the cases of detainees not approved for release or transfer to determine whether prosecution may be warranted for any offenses those detainees may have committed, and to determine which forum best suits any future prosecution."
Obama's action was praised by American Civil Liberties Union Executive Director Anthony Romero.
"President Obama's 'time out' comes at the perfect time in these shameful military commissions and shows he means business on Day One," Romero said in a statement issued today. "President Obama has to restore an America we can be proud of again by once and for all shutting down Guantanamo and its shameful military commissions."
But the top Republican in the House of Representatives didn't immediately welcome the move after seeing a draft of the executive order to close the facility and stop the military trials taking place there.
"The key question is, where do you put these terrorists? Do you bring them inside our borders? Do you release them back into the battlefield? Is it really necessary to suspend the trial of Khalid Sheik Mohammed, the avowed mastermind of the Sept. 11 plot, even though he has objected to the delay? " Rep. John Boehner, R-Ohio, said in a statement.
"If there is a better solution, we're open to hearing it," he continued. "But most communities around America don't want dangerous terrorists imported into their neighborhoods, and I can't blame them. As long as it is necessary to protect our national security interests, the terrorist detention facility at Guantanamo Bay should remain open."
The new administration has also taken steps to delay some scheduled hearings in cases filed by detainees seeking to challenge their detentions in federal court. On Tuesday, the administration asked and was granted a two-week delay for a case that had a hearing scheduled for today. In its motion the government wrote that it is currently "assessing how it will proceed" in that case, noting that "[t]ime is needed to make that assessment and determination."
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.
Obama: 'We Are Going to Close Guantanamo'
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.
New Take on Interrogation Techniques
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.
Indiana University law professor Dawn Johnsen, who is slated to take over the Office of Legal Counsel, which is charged with giving legal advice to the president, has publicly eviscerated the efforts of John Yoo, who worked for the OLC in the Bush administration and wrote the infamous 2002 memo that laid out the administration's legal position on torture.
"The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it -- all demand our outrage," Johnsen wrote in Slate magazine.
Georgetown University Law Center professor Neal Katyal is set to become the principal deputy solicitor general. It was Katyal who served as chief counsel to Salim Hamdan in the landmark Supreme Court case that overturned the Bush administration's early attempts at military commissions.
Marty Lederman, also a Georgetown Law School professor, is reportedly joining Johnsen at the OLC. Lederman has spent years criticizing the Bush administration's legal war on terror and titled one of his posts, "Yes, It's a No-Brainer: Waterboarding Is Torture."
ABC News' Luis Martinez contributed to this report.