May 21st, 2009
09:01 PM ET

Struggling to find a workable Gitmo plan

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Terry Frieden
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.

Filed under: 360° Radar • Guantanomo Bay • Terry Frieden
soundoff (6 Responses)
  1. wee

    What is obama thinking no ones these murders so my question is why so much compassion to these heartless prisoners

    May 22, 2009 at 6:46 am |
  2. Hartmut Rast

    Indeed, President Obama is not to be envied in finding a solution for those political disasters inherited from the former Bush administration. However, if I remember right, the US invaded Irak and started their War on Terror without having an UN mandate and against heavy protests by various western communities. Therefore, I am not surprised that the Europeans are now saying "Thank you US, but clean up your own mess and good luck in finding a solution about the Guantanamo detainees on your own". Hartmut Rast, London

    May 22, 2009 at 5:43 am |
  3. Brian Hoffman

    As a former Navy Operator in South America as well as Afghanistan, I believe that we need to use any means necessary to extract information to preserve the freedom and security of The United States and our citizens traveling abroad. I also believe that some media has created a sympathetic following for people who have been detained because of serious threats to the United States. These followers have to realize that we will not tolerate another attack on our country or citizens, and especially not on our soil. I, as well as hundreds of thousands of other military personnel have taken the oath to protect this country and we will not allow this terrorism to continue.

    May 22, 2009 at 1:31 am |
  4. Brian Hoffman

    As a former Navy Operator in South America as well as Afghanistan, I believe that we need to use any means necessary to extract information to preserve the United States and our citizens traveling abroad. I also believe that some media has created a sympathetic following for people who have been detained because of serious threats to the United States. These people have to realize that we will not tolerate another attack on our country and especially on our soil. I, as well as thousands of other military personnel have taken the oath to protect this country and we will not

    May 22, 2009 at 1:27 am |
  5. Michelle - St Augustine, FL

    miltary tribunal commisions are not acceptable. Pres Obama claims he will reform them but gives no specifics on how to do this. Military commisions are abscent of independent judical oversight . government can introduce evidence while keeping the methods used to obtain that evidence a secret, thus tainting that evidence. In civil court justice evidence gained through torture techniques will not stand up in court. So we decide who recieves civil rights and who does not? Further more hearsy evidence and evidence obtained under coercion is allowed in a commision if "deemed" to have probative value. Commisions close the proceeding in order to prevent disclosure of CIA activities ie torture. The right of a detainee to be able to affectively challange states evidence in a tribunal is impossible. Pres Obama has stated he would change the right of the detainee to possibly have the right to choose his own lawyer. Possibility? It is a constitutional right to be able to choose your own lawyer or resfuse to participate in the trial. Is this yet another evidence of presidental power?
    The most bizzare part of President Obama’s speech is the fact that he is attempting to shape the law to provide prolonged dention is absurd. Prolonged indefinte dention is unconstitutional, This comming from a constitutional lawyer is unbelieable. He claims to have the same Bush presidental power to create a system outside the US justice system and the constitution. Mr President you can not detain a person no matter how disgusting they are on the presumption that they will commit a future crime. Just because they say or think they want to commit a crime is not criminal and you as a lawyer know this.
    Good luck it seems that the President has not come up with a plan but a mix of the old with the new neither of which will work.

    May 21, 2009 at 10:53 pm |
  6. Davidson

    One of the results of the long war is the bad war. Our european friends now have abandon hope of not only the military solution which there is none and refuse to even help close our greatest embarassment ,Gitmo.They know that even Saddam was our close ally only when we preferred him to be and that when we attacked Iraq he or Iraq was not our enemy .The only change Obama has brought is that he has abandoned all political campaign rhetoric including the even mention of Dr. Martin Luther King or the people whom Dr. King spoke of. the persecuted and also the people who the US incarcerated as a part of the illegal attacks and invasions of foriegn Arab nations. this crime against humanity which began in the Bush administration and continues full force today must be entirely dismantled from its illegal inception first ,before Obama may make4 any headway with his long lost promises.l

    May 21, 2009 at 10:22 pm |