Closing Gitmo: Timing is Everything

July 3, 2008— -- Everyone, from President Bush to both contenders for his job, seems to agree that the prison camp at the U.S. Naval Base in Guantanamo Bay, Cuba, should be shuttered. The real question now is timing.

Since the Supreme Court issued its sweeping ruling last month granting those detainees access to U.S. courts, on U.S. soil, the White House has been wrestling with the nuts and bolts of operations at Guantanamo -- and whether to close the facilities.

Sources confirmed to ABC News that the process has taken on a new urgency, and meetings among President Bush's top aides -- the Principals -- have focused on a complex array of legal and practical issues over the future of GTMO. They had hoped to present a plan to President Bush as early as tomorrow, before he departs for the G8 summit, though no public announcement is expected.

A sticking point has emerged, however, among some top aides over a critical issue: the fate of military commissions to try top terror suspects.

Sources say there is some disagreement among advisers on whether those commissions should continue for future terror suspects -- a debate that is complicating the discussions.

Sources tell ABC News that Attorney General Michael Mukasey and Defense Secretary Robert Gates are ardent defenders of military commissions for top al-Qaeda suspects. The commissions -- military proceedings with different standards of evidence than criminal trials in U.S. courts -- already are under way for top suspects, including self-described 9/11 mastermind Khalid Sheik Mohammed.

According to high-level sources, Mukasey has repeatedly made the argument -- forcefully -- that trials of al-Qaeda suspects are not viable in federal courts and that military commissions are the best way to proceed.

Gates makes an additional point: Military personnel should not be asked to search for evidence on the battlefield that would be required in regular civilian courts, sources say.

But the State Department -- and Secretary Condoleezza Rice -- are more open to the idea of some day bringing at least some suspects to trial in the U.S., sources say.

Moreover, the legal future of military commissions is cloudy. Lawyers for Salim Hamdan, the driver for Osama bin Laden whose trial by commission is scheduled to start July 21, filed court papers this morning asking a federal judge in Washington to block the proceedings. The lawyers contend the Court's decision last month undercuts the entire system of military commissions.

They have asked U.S. District Court Judge James Robertson to block Hamdan's trial so they can challenge "the legality and jurisdiction of the military commissions," in light of the Supreme Court ruling giving the detainees basic constitutional rights.

Robertson had previously struck down an early version of the military commission system.

Hamdan's lawyers have asked Robertson to rule before Hamdan's trial is scheduled to start.

Also unresolved inside the White House is the immediate future of Guantanamo, which has been the target of worldwide criticism.

Among those at the G8 summit next week will be European leaders who also have called for closing Guantanamo. But Rice has asked those who have joined the "Close Guantanamo" chorus to consider the security and human rights implications of freeing many of the detainees, against whom evidence may be insufficient in a U.S. court, but who may well return to jihadism.

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?"

Under current immigration law, just because detainees may be released doesn't mean they have a legal right to live here in this country. Yet the U.S. can't indefinitely hold aliens just because they don't have a legal basis for being here. That means Congress will likely be in the position of sorting out what to do about detainees who are in a kind of no-man's land.

Separately, sources say President Bush is likely to put the onus on Congress to also deal with how to handle detainees the courts say are properly held. One solution is to send those detainees to the federal prison at Ft. Leavenworth, or spread them among U.S. naval brigs.

But the notion of potentially hundreds of terror suspects taking up residence in any congressman's district is "a political hot potato," said attorney Casey. Or, as Perino suggested at the White House today, "it is possible that some of these detainees, after challenging their detention in court, could be released into the United States… I'm sure that none of us want Khalid Sheikh Mohammed walking around our neighborhoods."