Justice Department's GTMO Decision: What To Expect

Ahead of a November 16  deadline, the Justice Department is readying a decision on how to bring some of Guantanamo's most infamous detainees to trial.

Officials insist that as of last night, when senior officials most recently met, Attorney General Eric Holder hadn't decided which detainees to try and where to put them on trial: either in federal courts or by the new military commission process that Congress ratified last month. Nonetheless, some clues about Justice's thinking are emerging.

ITEM: Early reports that as many as two dozen detainees would be disposed of during this first flight of announcements are false. Officials expect the announcement to focus on fewer than 20 -- perhaps as few as a dozen.

ITEM: Outside analysts expect that many, if not all, of the September 11 co-conspirators -- five in total -- will discover their near-term fates. And they highly doubt that the administration will announce that it has decided to indefinitely detain any of them. Those decisions will be made later.

ITEM: There are strong indications that the administration wants to try Khalid Sheikh Mohammed, the lead planner of the 9/11 attacks, in federal court. Where? That's a closely guarded secret. It could be the Southern District of New York -- in Lower Manhattan; it could be Arlington, VA; it could be Newport News, VA. Or somewhere else.

ITEM: The administration has indicated to allied civil liberties groups that it hopes to reserve the military commission process for crimes committed on the battlefield only. The interagency task force on detention policy recommended as much in its interim report to the president.

ITEM: The Justice Department's 11/16 decision won't affect the majority of detainees. The administration's self-imposed deadline to close Guantanamo by February of 2009 means that a large number of detainees will remain in limbo. Outside experts believe that most of these will be transferred to the Bagram Air Force base in Afghanistan until their trials begin. Detainees whose statuses are uncertain will not be held in the United States.

ITEM: The Department does not plan to say whether prosecutors will seek the death penalty for any of the detainees. That decision will come later -- much later -- and will involve discussions above the level of the U.S. Attorneys who are trying the case.

A white paper released by the Center for American Progress, which maintains close ties to the White House, argues that 9/11 conspirators will want to be martyered. Author Ken Gude writes: "It is in the United States' strategic interest to refrain from seeking the death penalty no matter which forum it chooses, thus denying martyrdom to the 9/11 conspirators. Military commissions remain tainted by Bush-era mistakes, and must be limited--if used at all--to battlefield crimes in order to gain a measure of legitimacy."