- The Washington Times - Thursday, May 21, 2009

President Obama will try to rally public support for his troubled plan to close the Guantanamo Bay detention facility in a major speech Thursday, confronting growing political unrest on Capitol Hill and a warning from FBI Director Robert S. Mueller III that bringing the detainees to the U.S. would pose major risks to Americans.

Mr. Mueller on Wednesday told a House panel that he had several concerns about bringing detainees into U.S. prisons, as the Senate voted overwhelmingly to withhold funding to shutter the U.S. Navy-run facility in Cuba until the White House decides where to house the 240 remaining terrorism suspects.

The Washington Times learned Wednesday night that the administration plans to announce Thursday the first U.S. civilian trial of a Guantanamo detainee.

In his testimony before the House Judiciary Committee, Mr. Mueller warned that “the concerns we have about individuals who may support terrorism being in the United States run from concerns about providing financing to terrorists, radicalizing others with regard to violent extremism, the potential for individuals undertaking attacks in the United States.”

The White House guarded details about Mr. Obama’s speech, which he will deliver at the National Archives less than an hour before one of his biggest critics on national security, former Vice President Dick Cheney, will give a speech in Washington on the same topic.

White House press secretary Robert Gibbs would divulge only that the president will talk for 35 minutes about “the values and the institutions that we hold dear in this country, and that in times of both war and peace we have upheld our values and have become, as many have said, a beacon of hope around the world because of it.”

Mr. Gibbs indicated that Mr. Obama - who on Jan. 22 ordered the facility shuttered in one year - would not go into great detail about topics still debated within the administration.

Attorney General Eric H. Holder Jr. said Wednesday that while concerns by Mr. Mueller and others will be addressed, “I think that it is still our intention [to close the prison], and I think we will meet that goal that the president has set to close Guantanamo by late January of next year.”

Meanwhile Wednesday, the Obama administration named the first al Qaeda suspect to be brought from Guantanamo Bay into the U.S. for trial in a civilian criminal court.

An administration official who was not authorized to disclose the decision said the administration plans to announce Thursday that Ahmed Ghailani will be brought to trial in New York on indictments related to the 1998 bombings of the U.S. embassies in Kenya and Tanzania that killed 224 people, including 12 Americans.

Ghailani, a Tanzanian, was seized in Pakistan in 2004.

Benjamin Wittes, a legal expert at the Brookings Institution, said it will be difficult for Mr. Obama to satisfy critics on both the right and the left when the administration still has not figured out all the answers to a large set of very thorny questions.

“There’s a lot of questions they don’t know, and that means they don’t know the contours of the policy they’ll have at the end of the year. It’s still pretty fuzzy,” said Mr. Wittes, who back in December wrote that “members of Congress will give NIMBY-ism a whole new meaning when it comes to keeping [terrorism suspects] out of their districts.” NIMBY is an acronym for “not in my backyard.”

” ‘Close Guantanamo’ are two words, and they bought you a certain amount of time, but they raise more questions than they answer, and until you answer them, you’re very vulnerable,” he said. “What’s happened is as time has gone on, and they have not articulated in public what the answers to those questions are, you’ve seen a lot of Democratic congressional anxiety.”

Republicans continue to make political hay with the issue. House Republicans have introduced a bill called the “Keep Terrorists out of America Act,” which would express congressional opposition to moving detainees into the U.S. and require that the federal government receive approval from governors and state legislatures if it did transfer them.

Under pressure from such attacks, top Democrats such as Senate Majority Leader Harry Reid, Nevada Democrat, maintained opposition Wednesday to “transferring detainees to American prisons.” The Senate voted 90 to 6 to block $80 million from going toward closing the Guantanamo facility.

“If the administration proposes a plan that recommends the transfer of some detainees to American prisons, [Mr. Reid] will evaluate it carefully and make a judgment at that time,” said Reid spokesman Jim Manley said.

Undersecretary of Defense for Policy Michelle Flournoy said that some detainees will have to be brought to U.S. facilities, especially if the Obama administration is asking allies to take some of the prisoners, according to the Associated Press.

Sen. Dianne Feinstein, California Democrat, pointed out that several convicted foreign terrorists - including “shoe bomber” Richard Reid, 9/11 conspirator Zacarias Moussaoui and others - are all currently in the “Supermax” prison facility in Florence, Colo.

“We have the facilities to keep convicted terrorists behind bars indefinitely and keep them away from American citizens,” she said on the Senate floor. “No member of Congress wants to see, or advocates, the reckless release of terrorists, or anyone who is a threat to our national security, into our communities. It does not have to, and it will not be done that way.”

Responding to Mrs. Feinstein’s mention of the Supermax facility, a spokesman for Senate Minority Leader Mitch McConnell, Kentucky Republican, sent a note to reporters asking simply, “I wonder how Colorado’s senators feel about that.”

There are several classes of detainees at Guantanamo, which at one time housed almost 800 terrrorism suspects, some of whom have been released to their countries of origin only to continue terrorist activity.

The U.S. wants to release some detainees but faces the problem of foreign governments who might torture them, governments who don’t want to take them in because of perceived dangers, and an American electorate that would react feverishly to such an action.

There are some detainees the government intends to try in Article III criminal courts, within the regular criminal justice system. Those detainees would likely end up in U.S. prisons.

Then there are those who the administration wants to try in military commissions, which Mr. Obama announced last week he plans to restart after initially freezing the process set up by the Bush administration. Those detainees would likely be held in military prisons.

And finally, there are those who cannot be tried because the evidence against them is classified or otherwise inadmissible in court, but are too dangerous to release. The risk of moving them to a detention center in the U.S. is the highest, because since the 2008 Supreme Court decision in Boumediene v. Bush, enemy combatants have had the right to challenge their detention under the writ of habeas corpus.

The government has lost a number of habeas hearings, and will continue to lose some in the future, Mr. Wittes said.

But “if you’re the government and you believe these people are dangerous and you’re holding them at Guantanamo, you have an additional legal argument, which is no court has the authority to order somebody brought to the United States. That’s an immigration question that the executive branch basically has plenary power over.”

“If you’ve already brought them here, and a court finds they’ve been unlawfully detained, a court can order them released,” he said. “There is a substantial litigation risk that you’re assuming when you bring people held abroad to the United States.”

Mr. Mueller broached the possibility of detainees being loose on U.S. soil and said the FBI would in such a situation closely watch those individuals.

“I think, generally, to the extent that persons who have some background in either supporting, facilitating or training with terrorists, it would present a concern to which we would utilize - maximize our efforts to minimize and mitigate that concern, whether it be by surveillance or wires or other efforts to assure that we have minimized that concern,” he said.

The Senate also passed Wednesday by a 92-to-3 margin an amendment requiring the Obama administration to provide a threat assessment for every Guantanamo detainee.

The assessments will “indicate the likelihood of recidivism, and … report on and evaluate any effort that al Qaeda may make to recruit detainees once they are released from U.S. custody,” said Don Stewart, a spokesman for the Senate minority leader, who sponsored the measure.

Nonetheless, Mr. Holder expressed confidence that the Obama administration will be able to negotiate a deal with lawmakers that allows the money for closing Guantanamo to be released.

“We will have conversations with Congress, and I’m confident that as a result of those conversations the necessary funds will come our way. I think one of things President Obama has made clear and one of the things that I have emphasized is that in resolving these issues we’ll have to work with Congress,” he said.

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