Nov. 10, 2009 -- As the Obama administration prepares to announce that it will try some of the detainees being held at the detention center at Guantanamo in U.S. federal courts, opponents of the plan are ratcheting up their criticism.
Critics like Michael Mukasey, former Attorney General for the Bush administration, say that the men who plotted 9/11 weren't deterred by the prospect of being tried in federal courts.
"At least those moving this process forward," Mukasey wrote in a recent article in the Washington Post, "should consider whether the main purpose here is to protect the citizens of this country or to showcase the country's criminal justice system, which has been done before and which failed to impress Khalid Sheik Mohammed."
Sens. Sen. Lindsey Graham, R-S.C., John McCain, R-Ariz., Joe Lieberman, I-Conn., and Jim Webb, D-Va., failed last week to push through an amendment that would have prohibited the prosecution of any individual suspected of involvement with the Sept. 11 attacks on the United States from being tried in Article III courts.
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 speech last May, President 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 altogether.
"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 commission's 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."
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 to be tried for his involvement in the 1998 bombings of U.S. 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.
Some detainees at Guantanamo are not destined for trial in a U.S. court, but instead will be handed over to other countries.
In testimony this summer, Jeh Johnson, general counsel of the Department of Defense, said that the number of other detainees approved to be transferred 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 have 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. "
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.
Total Number of Detainees Still Unclear
The administration has refused to break down the detainees by numbers. In July, Navy Capt. 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.
Said Waxman, the Bush administration's former deputy assistant secretary of state of detainee affairs, "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.