The impending decision to hold trials at Gitmo, first reported by the New York Times, demonstrates a huge concession on the part of the Obama Administration.  Obama signed an executive order in Jan. 2009 that would have closed Guantanamo within a year.

However, Congress pushed back mightily, substantially limiting Obama's options.  One of key issues is whether Gitmo detainees should be tried in federal criminal court (which Obama and Attorney General Eric Holder had pushed for) or by a military tribunal in Cuba.

It appears that the latter option has won the day:  "With the political winds now against more civilian prosecutions of Guantánamo detainees, the plans to press forward with additional commission trials may foreshadow the fates of many of the more than 30 remaining detainees who have been designated for eventual prosecution: trials in Cuba for war crimes before a panel of military officers."

As for the other prisoners who are being held indefinitely without charges, the situation remains abysmal.  The Supreme Court this week declined an appeal by Mohammed al-Adahi, a Yemeni citizen who has been held since 2002.  A federal judge had ordered al-Adahi to be released in 2009 after she concluded the government had been unable to connect him to terrorist acts.

The following prisoners are expected to be among the first tried: "Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs."

The handling of various cases once placed under the umbrella of the War on Terror has been messy and inconsistent.  Many prisoners, including Nashiri, were waterboarded and subjected to other extreme interrogation techniques.  There are questions as to the validity of evidence collected inside Guantanamo and via external FBI investigations.  Of particular importance: hearsay evidence is admissible before a military tribunal, but not in an American federal court.

Undoubtedly, the outcomes of these trials will be affected by the conditions under which they are held.

Anthony Romero, executive director of the ACLU, urged Obama to push back against Congress.

“There is nothing stopping the president from ordering the Department of Justice or Homeland Security to send planes to Guantánamo to transfer detainees to the United States for prosecution or to foreign countries for repatriation or resettlement.  He should do so as soon as possible.”