WASHINGTON (CNN) – 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 Barack Obama's top aides, David Axelrod, promised Thursday that Congress would receive such a plan, and declared the president's address Thursday represented a "framework for a plan." Administration officials indicate the plan itself is probably months away.
During an address on national security at the National Archives in Washington, Obama defended his decision to close the detention center at Guantanamo, and he outlined categories in which to separate the remaining detainees.
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 group, 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. Those would include 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 Obama referred to Ghailani's case in his speech Thursday 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 that 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 American Civil Liberties Union. At present, the Supreme Court has specified only that military trial defendants at Guantanamo are entitled to habeas corpus - the right given to defendants to contest their detention.
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.
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 - which in recent weeks has grown from 30 to 50 - of detainees who the government wants to resettle abroad. The U.S. has been engaged in diplomatic efforts for other countries to accept them. Obama's pleas to European allies appeared to fall on deaf ears, with France agreeing to take only one detainee - which France had previously said it 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.
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.
Why is anyone listening to Dick Cheney. If everyone is glad he is gone, why does the media continue to report anything he would say.
Albania sounds like a good stop and there are things to do there... I lived there for a while... nice people and the govt. can be bought off... send them to Albania
President Bush left this country in the biggest mess of any president before. I am ashamed he was our president. In the words of Harry Reid , President Bush sat on his hands until things got so out of control that he had to do something. He was a weak leader.
Dick Cheney is "Ivan the Terrible" who believed also in torture and carried it out on millions of Jews. Dick Cheney should be in prison.
We were able to lock up Timothy McVeigh in the United States. Why can't we lock these guys up here too?
I think Gitmo and our detainee policy needs a makeover. The terrorist plot in New York this week argues for keeping as many of the bad guys offshore as we can. We should rename the place as we reshape our policy.
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
Really, Barry? How so?? What the hell is wrong with you, man?
Hey! Obama and Eric Holder loves these terrorists, just set them free in Chicago.
Even though obama's own party is saying NO to closing gitmo, he just stands in front of his teleprompter and says he is closing it. Didn't things used to have to be approved by congress. If it is just one man making the rules isn't that a dictatorship?
This is what happens when a campaign is finally signed, but there is absolutely NO plan on what to do with the rest of the problem...That is what happens when you shut down Gitmo...And then what happens to the prisoners still there...And nobody wants them
All these states representatives that are "afraid to relocated these prisoners" into their state are lame if you ask me. What we can't hold our prisoners? Come on. I HOPE my state gets them – I HOPE my state has the honor of that national responsibility – that's patriotic right?
Well, I certainly hope they don't close Guantanamo before sending those terrorists from NYC who targeted the Jewish schools there. I mean, we couldn't possibly try those four in America - they are way too dangerous to be let loose in the US. EVERYBODY knows that.
And yes, that was sarcasm for those of you who are humor-impaired...
Cheney's speech today was, as usual, full of lies.
Change you can believe in... change,... uh, change... cha... Awwwww, just let 'em lose...
"The framework calls for putting the names of the 240 remaining detainees into five piles, then trying to resolve the legal complexities of each."
lolol....what a bunch of clowns we have trying to run the country.....why not just flip a coin?
I am slowly abandoning many of the mainstream websites because goons such as Dick Cheney are constantly being given the microphone. What kills me is he's not here with solutions, he's only here to defend his tarnished legacy. Boy, that's country first.
I love the president speech,thank for our president.
Very biased writing. The use of words like "struggling" and "try to somehow fashion a plan" are no where supported by any actual reporting.
Please try to demonstrate objectivity or substantiate your claims, Mr. Frieden.
President Obama is not Stupid Dumb or Ignorant. Matter of fact, last time I checked, this man has accomplished more than most of us and is sincere. I trust that he will do his best for all of us...
Where's the story on the foiled terrorist plot in NY today? I understand the Patriot Act played a significant role in exposing and thwarting the plot to terrorize Jewish facilities and kill randomly. If CNN isn't going to publish the news, it looks like we'll all have to to to FOXNews to read about these stories so we can be informed.
Isn't alcatraz prison empty ,you could put Bush and Cheney in cell block 1.The rest of their cohorts in the other cells,see how they like it.They'll be quiet there,a little torture wouldn't hurt either.Let their lawyers,Yoo,Gonzales and the like ,be the roomates with their Babe MissRice, WOOOO!