Obama May Reconsider Military Tribunals for Guantanamo Detainees, Reports Say

Jan. 21, 2011— -- Exactly two years ago from tomorrow, President Obama took the bold step of signing an executive order calling for the shutdown of the controversial Guantanamo Bay detention center "as soon as practicable, and no later than one year from now."

It was one of the first orders of business, and a hugely symbolic step, taken up by the newly-elected president, who argued that such a move would make Americans safer.

But after heated debates on where Guantanamo prisoners should be tried, resistance from U.S. allies on repatriation of detainees, and a bipartisan fight against the administration's stance, a new reality is taking shape.

The New York Times first reported Wednesday that Defense Secretary Robert Gates is expected to soon lift an order blocking the use of military tribunals to prosecute detainees, a marked departure from the Obama administration's rhetoric thus far. But it's also a stark admittance by the administration that the task is much more complicated than officials predicted and they will have to rely on tools that they were hoping to avoid to move forward, experts say.

"It's an extremely difficult thing to do politically, operationally, diplomatically, legally. It's a very very complex policy we tried to reorient," said Matthew Waxman, a professor at Columbia Law School who served as deputy assistant secretary of defense for detainee affairs in the George W. Bush administration.

"There was something of a mismatch between the declaration and the offer to close Guantanamo and the true political priorities of this administration," he added. "Other agenda items including the economy are likely to continue to occupy the president's time."

One of the main impediments against the Obama administration's decision is fierce, bipartisan resistance from Congress.

The $725 billion National Defense Authorization Act that Obama signed on Jan. 7, explicitly prohibits the use of Defense Department funds to transfer detainees from Guantanamo Bay in Cuba to the United States or other countries. It also bars Pentagon funds from being used to build facilities in the U. S. to house detainees, as the president originally suggested.

The move essentially barred the administration from trying detainees in civilian courts. The president objected to the provision in the bill before signing it, calling it "a dangerous and unprecedented challenge to critical executive branch authority" but also said his team would work with Congress to "seek repeal of these restrictions."

Attorney General Eric Holder suggested Thursday that federal trials for the five detainees accused of involvement in the Sept. 11 attacks, including self-proclaimed mastermind Khalid Sheikh Mohammed, could still continue despite Congress' restrictions, adding that nothing is off the table as of yet.

Military Tribunals Could Continue for Guantanamo Detainees

Holder's efforts to move the five alleged terrorists to a federal court in New York City have come under fire from both Democrats and Republicans, who are unwilling to support such a move.

"Our nation has invested millions of dollars in building state-of-the-art humane and safe facilities to detain and prosecute the terrorist detainees at Guantanamo," Rep. Howard "Buck" McKeon, R-Calif., chairman of the House Armed Services Committee, said on Wednesday. "It would be fiscally and morally irresponsible to shutter the facility at this time and invest in new facilities in the United States at a time when our nation is tightening its belt."

Democratic Sens. Chuck Schumer and Kirsten Gillibrand of New York both vehemently opposed plans last year to hold a trial in their home state, pitting themselves against the Obama administration.

Proponents of closing the Guantanamo detainee center say they are extremely disappointed by recent reports indicating that military tribunals will resume.

"We think this is a significant step backward in efforts to restore the rule of law, when he [the president] should be moving instead towards closing Guantanamo," said Hina Shamsi, director of the American Civil Liberties Union's National Security Project.

"Certainly Congress bears a share of the responsibility for the fact that Guantanamo remains open and it's shameful policies continue, but two years ago President Obama ... put the power and prestige of the presidency behind what he described as a national security imperative and instead of proceeding down that correct path we've made few to no steps forward and that is simply not good for the restoration of the rule of law or for good policy making," Shamsi added.

There are about 170 prisoners remaining at the detainee center in Guantanamo Bay, 30 of which were due to face trial in criminal courts or before military commissions. Since 2002, 598 prisoners have been transferred to other countries.