ABC News' Jake Tapper and Sunlen Miller report:
While President Obama has been pushing Congress to meet his deadline of August recess to pass health care reform legislation two of his task forces in charge of reviewing the administration’s policies in the war on terror -- the Special Task Force on Interrogation and Transfer Policies and the Detention Policy Task Force -- will not meet the Tuesday, July 21, deadline issued by the President last January, and have asked for and been granted two month and six month extensions, respectively.
Senior administration officials briefed reporters tonight ahead of that deadline refused to say Guantanamo Bay will definitely be closed by January, as the President pledged.
"That’s our goal, that’s what we’re working toward," a senior administration official said. "We are on pace to meet the deadline."
The Special Task Force on Interrogation and Transfer Policies, which received the two month extension, is working to determine who will interrogate detainees and what the rules of engagement will be moving forward.
The Detention Policy Task Force, which received the six month extension, issued a preliminary report Monday, as well as a document outlining protocols for prosecution, stating that there will be a presumption that whenever feasible detainees will be tried in US courts "in keeping with the traditional principles of federal prosecution."
But in other instances, the report states -- in conclusions that will assuredly anger some of the president's liberal and civil libertarian supporters -- the Obama administration will seek prosecution through military commissions or, if prosecution is "not feasible in any forum," the detainee will face "other disposition" -- presumably indefinite detention.
The Detainee report, drafted by Brad Wiegmann, principal deputy and chief of staff in the National Security Division of the Department of Justice, and Colonel Mark Martins, a former staff Judge Advocate for Multinational Force—Iraq, asserted that "federal courts have not traditionally been used to try violations of the laws of war, and that they are not always best suited to the task."
The Detention Policy Task Force argued that military commissions are as American as apple pie, having been used during World War II, the Philippine Insurrection, the Civil War, and the Mexican War, not to mention that "precursor military tribunals were used even before the founding of the Republic by colonial forces during the Revolutionary War."
The report asserted that the Bush administration's commissions "suffered from a perceived lack of legitimacy" both because they initially had been created without congressional approval and also "because some of the provisions, such as those that allowed the use of evidence obtained through cruel and inhuman treatment, did not comport with fundamental fairness."
The preliminary recommendations include prohibiting the admission of statements obtained through cruel, inhuman, and degrading treatment; providing detainees greater latitude in the choice of counsel; affording basic protections for those defendants who refuse to testify; reforming the use of hearsay by putting the burden on the party trying to use the statement; and making clear that military judges may determine their own jurisdiction.
That said, the report asserts that U.S. "soldiers should not be required to give Miranda warnings to enemy forces captured on the battlefield, asserting that they have the right to remain silent, to an attorney, and so on. The report says that "applying these rules in such a context would be impractical and dangerous. Similarly, strict hearsay rules may not afford either the prosecution or the defense sufficient flexibility to submit the best available evidence from the battlefield…"
"Military commissions that take into account these concerns are necessarily somewhat different from out federal courts, but no less legitimate," the report states.
Administration officials reported that of the 240 detainees, "more than 50" have been deemed okay to transfer, and a "significant number" deemed marked for prosecution. No decisions with respect to indefinite detention, for any of the detainees, has been made yet.
Officials would not be more exact on the breakdown of the numbers.
Why the delay?
"We wanted to get this right," senior administration officials said describing the methodical pace that they wanted to go though these issues and cases. "It’s a hard, complicated issue – let’s not kid ourselves."
Administration officials said they wanted to make sure they looked at every angle before presenting this to the President, who they said would surely look at each recommendation with a fine tooth comb. They highlighted that the Executive Order signed by the President in January allowed for an extension if needed.
The Guantanamo Executive Order called for a complete review of the detainees. For the past 6 months, once a week, a 65-person task-force -- made up of representatives from agencies like the FBI, Pentagon, the CIA, and attorneys from the Justice Department -- met on a secure floor within a secure facility to discuss the review.
They first assembled all the information available on each of the 240-detainees at Guantanamo. The next step will be for each detainee to be evaluated and deemed ready for transfer or prosecution. A recommendation will be made, and then proceed to a review panel of senior level officials for a final decision.
There must be a unanimous agreement whether to transfer or prosecute the detainee for the process to move forward . If there is not unanimity, the decision will go to the principals -- Defense Secretary Robert Gates, Attorney General Eric Holder, and so on. Officials said they were "over halfway though" this review process of the 240 detainees.
Senior administration officials continued to stress that they are "making good progress" in working with other countries to take in the transfer of detainees. Specifically they mentioned that Spain, Palou, Portugal, and Ireland have all made promises to accept detainees. They made reference to another group on the international scene that would be coming out with a joint statement coming up similar to the European Union’s statement. Officials said they were "heartened" by the international response, especially in Europe, and the progress made on this front.
Activists from both sides of the aisle expressed disappointment in the announcements.
In a statement tonight Anthony D. Romero, Executive Director of the ACLU, protested the preliminary decision to keep military commissions, saying, "the Obama administration must not slip into the same legal swamp that engulfed the Bush administration with its failed Guantánamo policies. Any effort to revamp the failed Guantánamo military commissions or enact a law to give any president the power to hold individuals indefinitely and without charge or trial is sure to be challenged in court and it will take years before justice is served."
Kirk S. Lippold, former USS Cole Commander and Senior Military Fellow at Military Families United, said he was disappointed that the Detainee Task Force received a six-month extension. “Justice delayed is justice denied…again," Lippold said.
"While the President hopefully now comprehends the far-reaching complexities of closing Gitmo, " Lippold went on, "he continues to be unwilling to reconsider the shortsighted and naïve decision to close the detention facility. It was easy to make a campaign promise to close the facility, but the realities of governing have made this campaign promise unrealistic, dangerous and contrary to the national security interests of this nation."