Obama plans U.S. trials for Gitmo detainees

Concern about new system
"There would be concern about establishing a completely new system," said Democratic Rep. Adam Schiff, a member of the House Judiciary Committee and former federal prosecutor who is aware of the discussions in the Obama camp. "And in the sense that establishing a regimen of detention that includes American citizens and foreign nationals that takes place on U.S. soil and departs from the criminal justice system — trying to establish that would be very difficult."

Although a hybrid court might be unpopular, other advisers and Democrats involved in the Guantanamo Bay discussions say Obama has few options.

Prosecuting all detainees in federal courts raises many problems. Evidence gathered through military interrogation or from intelligence sources might be thrown out. Defendants would have the right to confront witnesses; that means undercover CIA officers or terrorist turncoats might have to take the stand, jeopardize their covers and reveal classified intelligence tactics.

That means something different would need to be done if detainees could not be released or prosecuted in traditional courts. Exactly what remains unclear.

"I don't think we need to completely reinvent the wheel, but we need a better tribunal process that is more transparent," Schiff said.

According to three advisers participating in the process, Obama is expected to propose a new court system and may appoint a committee to decide how such a court would operate. Some detainees probably would be returned to the countries where they were captured for further detention or rehabilitation. The rest probably could be prosecuted in U.S. criminal courts, one adviser said. All spoke on condition of anonymity to discuss the continuing talks, which have been private.

The Yemeni challenge
One challenge will be to figure out what to do with the 90 or so Yemeni detainees, the largest group in the prison. The Bush administration has sought to negotiate the release of some of those detainees as part of a rehabilitation plan with the Yemeni government. Talks have so far been fruitless.

Waleed Alshahari, who has been following Guantanamo issues for the Yemeni Embassy in Washington, said the plan being discussed by the Obama team was an improvement over the current system. But he said he expects most detainees to be released rather than stand trial.

"If the U.S. government has any evidence against them, they would try them and put them in jail," Alshahari said. "But it has been obvious they have nothing against them. That is why they have not faced trial."

Whatever Obama decides, he should move quickly, Tribe said.

"In reality and symbolically, the idea that we have people in legal black holes is an extremely serious black mark," Tribe said. "It has to be dealt with."

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