CNN Justice Producer
Attorney General Eric Holder's Guantanamo Review Task Force is struggling to sort the prison detainees into five neatly ordered lists, as government lawyers try to somehow fashion a plan which will clear expected legal challenges while satisfying skeptical lawmakers and a nervous public.
Every turn appears more complicated as the weeks pass.
On the immediate heels of a demand by Congress for a clear and specific plan for emptying Guantanamo, one of President Obama's top aides, David Axelrod, promised Thursday Congress would receive such a plan, and declared the President's address represented a "framework for a plan". Administration officials indicate the plan itself is probably months away.
The framework calls for putting the names of the 240 remaining detainees into five piles, then trying to resolve the legal complexities of each.
The first pile, which government sources and defense attorneys estimate at several dozen detainees, would be brought to the U.S. and tried for crimes in civilian courts. But those cases would be limited to instances in which prosecutors believe they can win convictions under criminal procedures and rules of evidence including competent legal representation, defendant's Miranda rights, direct witness testimony absent hearsay, and sharing with the defense "Brady" material– evidence which could help their case.
The government identified only one name on that list Thursday when the Justice Department announced Ahmed Khalfan Ghailani indicted in the East Africa embassy bombings would be tried in New York. Major terrorist figures have been successfully prosecuted in New York amid tight security.
Officials familiar with the case declined to speculate how soon Ghailani could be removed from Guantanamo but acknowledged it would take some time to deal with necessary legal procedures and develop detailed security arrangements.
The officials stressed the timing is unrelated to Congressional concerns about bringing Guantanamo detainees to the U.S. expressed in a lop-sided vote Wednesday. Indeed, when President Obama referred to Ghailani's case in his speech he declared, "It is time to finally see that justice is served, and that is what we intend to do".
One government official, requesting anonymity, suggested this was "atypical" and called it a "pre-9/11 case" which may fall outside of those cases which prompted serious security concerns and questions about how evidence was obtained. Ghailani was first indicted in December 1998 for the Tanzania bombing two months earlier.
A second pile of names is comprised of detainees who would face revamped military commissions for violations of the laws of war. The administration is vowing to give defendants greater legal protections, but has not said where those trials would be conducted. Interested outside lawyers are trying to figure out if those trials were held at military bases on U.S. soil whether any additional defendant rights would be attended.
"If the trials were on U.S. soil, the administration would have an even more difficult time arguing the defendants don't have full constitutional protections," said Jonathan Hafetz, staff attorney for the ACLU. At present, the Supreme Court has specified only that military trial defendants at Guantanamo are entitled to habeus corpus. The ACLU lawyer calls any form of military commissions a "second class system" and "an illegitimate process" under the control of the Defense Department and stacked against the defendant.
A third stack of names consists of those who could be detained at length without charge because they cannot be tried even though they are believed to pose a serious threat to the United States. This list particularly infuriates human rights and civil liberties groups. It is not known how many individuals that category may include.
President Obama asserted Thursday that he had inherited "a misguided experiment that has left in its wake a flood of legal challenges that my Administration is forced to deal with on a constant basis". However, if the Administration proceeds with any plan to hold these detainees without charges he will face a raft of new lawsuits. The civil liberties groups Thursday vowed to bring an array of legal and constitutional challenges to any system of indefinite detention.
A fourth stack of only 21 detainee names is for those individuals who have been ordered released by U.S. courts, but whom nobody will take. Seventeen of them are Uighurs– Chinese Muslim separatists– who say they would be executed if sent to China. They are apparently at the front of the line for release to any nation that will accept them. However, strong opposition has developed in the U.S. to releasing them into the general population. U.S. officials say unless Washington agrees to take some of them, no other nation will step forward. An issue of concern to Congress in particular is that the Uighurs attended al Qaeda training camps before they were arrested in Pakistan and turned over to U.S. authorities.
The last category is a list of detainees– which in recent weeks has grown from 30 to 50– who the government wants to resettle abroad. The U.S. has been engaged in diplomatic efforts for other countries to accept them. President Obama's pleas to European allies appeared to fall on deaf ears, with France agreeing to take only one detainee– which they had previously said they would do.
The international community is waiting for the U.S. to take the first batch, but political realities appear to make that nearly impossible. President Obama Thursday acknowledged that more than 50 freed Guantanamo prisoners have re-joined the fight against the U.S. He blames the Bush Administration for the releases, but lawmakers argue that has the effect of undercutting the Administration argument that the detainees would pose no threat to the American public.
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