U.S. administration encounters difficulties in effort to end Guantanamo Bay detentions.

• Author: Crook, John R.

At the beginning of his administration, President Barack Obama issued an executive order directing that detentions at Guantanamo Bay, Cuba, end within a year. (1) This process has proved to be complex and difficult. Influential U.S. congressional and local leaders have resisted transferring detainees to the United States, and polls indicate that most Americans oppose ending detentions at Guantanamo. (2) Administration officials also are wrestling with how to deal with detainees thought to have committed criminal offenses, but where important evidence is classified or where the defendants' past statements may have been tainted by their treatment while detained.

President Sees Five Categories of Detainees. In a May speech, President Obama sought to respond to questions and criticisms regarding his intention to end detentions at Guantanamo Bay. He identified five separate groups of detainees, each requiring a separate approach. (3)

We are currently in the process of reviewing each of the detainee cases at Guantanamo to determine the appropriate policy for dealing with them.... ... [G]oing forward, these cases will fall into five distinct categories. First, whenever feasible, we will try those who have violated American criminal laws in federal courts--courts provided for by the United States Constitution. Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists. The record makes that clear. [The president here reviewed the convictions in U.S. civilian courts of Ramzi Yousef, Zacarias Moussaoui, and Ali al-Marri, as well as the then-pending transfer to New York of Ahmed Khalfan Ghailani.] The second category of cases involves detainees who violate the laws of war and are therefore best tried through military commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.... I said [in 2006] that I supported the use of military commissions to try detainees, provided there were several reforms.... We will no longer permit the use ... as evidence [of] statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify.... The third category of detainees includes those who have been ordered released by the courts.... This has nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have spoken. They have found that there's no legitimate reason to hold 21 of the people currently held at Guantanamo. Nineteen of these findings took place before I was sworn into office.... (4) The fourth category of cases involves detainees who we have determined can be transferred safely to another...