Obama's Order to Close Gitmo in Year Could Face Resistance

President Obama wants to close the detention center at Guantanamo Bay within the year and could put an end to the military tribunals after a four-month review, according to a draft executive order.

FOXNews.com

Wednesday, January 21, 2009

President Obama's plan to close the detention center at Guantanamo Bay in Cuba could face resistance among some Republicans and the families of terror victims, and questions already are being raised about what would happen to the 245 remaining detainees at the facility.

Obama is expected Thursday to sign executive orders calling for the closure within the year and the development of new procedures for handling detainees and new policies on interrogations. On Wednesday, White House counsel Greg Craig met with top Republicans to review the president's plan.

Rep. Lamar Smith of Texas, the top Republican on the House Judiciary Committee, told FOX News that he worries that if the prisoners are transferred to U.S. soil then constitutional standards would apply to them, and that raises the potential of a "friendly judge" releasing them.

Smith also voiced concern about detainees being transferred to other countries, saying it was "almost inevitable" that the Obama administration will relax some of the standards for confining and prosecuting the detainees.

Drafts of the orders obtained Wednesday state that closing the facility "would further the national security and foreign policy interests of the United States and the interests of justice."

With the executive orders, Obama will call for a panel to conduct a systematic review of each of the 245 remaining detainees' cases to determine which ones can be released and which should be prosecuted or remain confined. In the meantime, trials before the existing military commissions would be put on hold.

"It is in the interests of the United States to review whether and how such individuals can and should be prosecuted," the drafts say.

A judge has already granted Obama's request to suspend the war crimes trial of a young Canadian for 120 days. Army Col. Stephen Henley issued the ruling Wednesday after a brief hearing at the Guantanamo base.

That decision promoted outrage among the families of people killed in the terrorist attacks of Sept. 11, because some of the detainees at Guantanamo are suspects in the attacks.

"I see no reason why we should delay these proceedings. Let justice be served," said Jefferson Crowther, whose 24-year-old son, Welles, was killed in the Twin Towers after he saved the lives of several others.

Some of the defendants say they oppose the delay because they want to plead guilty to charges that carry a potential death sentence. Execution would enable them to become martyrs.

Under a scenario foreshadowed in the draft orders, some detainees being held at Guantanamo would be released, while others would be transferred elsewhere and later put on trial under terms to be determined. Closing Guantanamo could potentially mean moving the remaining detainees to federal prisons in the U.S., such as the Leavenworth prison in Kansas.

Sen. Sam Brownback, R-Kansas, vehemently opposes that idea. He introduced legislation almost immediately after the draft regulation was announced requiring Obama to provide Congress 90 days' notice as well as a study that answers specific questions relating to security, logistics and alternatives before taking any action to close the Guantanamo prison or move the detainees.

"We cannot afford to make snap decisions about detainee policy, and the American people should be able to judge any policy changes for themselves," Brownback said. "This legislation would require an open and comprehensive review of the factors related to moving the Guantanamo detainees."

Wednesday's drafts may be as much an indictment of the Supreme Court's direction on how to prosecute detainees than on anything else.

The Supreme Court's decisions over the past few years -- most recently its June ruling on Lakhdar Boumediene, a naturalized U.S. citizen held at the prison who successfully claimed habeus corpus rights -- have produced legal contradictions in allowing detainees access to U.S. courts.

The facility at Guantanamo Bay has long been the target of Bush administration critics at home and some governments overseas. The Bush administration established the prison early in battling terrorism, contending that the people held there were not entitled to the customary rights of prisoners in the United States, or to the protections of the Geneva Conventions that cover war prisoners.

The draft orders note that some of the detainees at the site have there for more than six years, and most for at least four years.

At the Pentagon, military leaders were preparing for the orders that spokesman Bryan Whitman said would begin a "comprehensive review of policies and procedures related to detainee activities."

"The president has clearly made his intentions well known," Whitman said. "And he has taken the first steps with respect to his direction to order a pause to military commission proceedings."

David Rivkin, a constitutional attorney, said he hoped the 120-day review to be undertaken by the Pentagon would lead to "responsible" results.

"You can, but that does not resolve the situation. You either have to detain them under the military justice/laws of war paradigm, you need to decide how you're going to prosecute the rest," he said.

Rivkin said that such a decision isn't just about moving the 245 detainees remaining at Guantanamo, which initially housed more than 800.

"This is about hundreds and thousands of people the United States is likely to capture in future wars .. ongoing wars frankly against Al Qaeda and Taliban. You cannot fight a war without retaining this vital legal architecture," Rivkin said.

He said he's less concerned about whether it's military commissions or tribunals or giving more due process to the detainees.

"They have to keep this architecture, they can not just keep or resort to a criminal justice model," he said.

FOX News' Lee Ross and Chad Pergram and The Associated Press contributed to this report.