U.S. & World

SOUTH RIVER, N.J. (CBS News) ― Andrew Arias is frustrated that the cases against the men allegedly responsible for his brother's death on September 11, 2001, are nowhere near a legal resolution.

"Let's just get it done, get it over with, and move on," Arias tells CBS News. "I'd like to see these guys in solitary confinement for the rest of their natural life."

Arias, a freight train engineer, was three years older than his kid brother Adam, who was a vice president of Eurobrokers, a bond brokerage on the 84th floor of the World Trade Center's south tower, perilously above where the building was struck by the second al Qaeda-hijacked jet on September 11. Adam led an evacuation of his office right after the first hijacked plane had crashed into the north tower

"He got everybody out down to the ground floor and went back to assist firefighters," Arias said. Adam's body was recovered after the collapse near a number of fallen firefighters.

Last week, Andrew, his brother Don, and his sister Lorraine, traveled with a few other 9/11 family members on a military charter to the U.S. base at Guantanamo Bay, Cuba, to witness the latest hearings of the special military commissions established by Congress and President Bush in 2006 to prosecute detainees.

Five of the detainees, including the alleged operational leader of 9/11, Khalid Shaiykh Mohammed, and his accused chief lieutenant in assisting the hijackers, Ramzi Binalshibh, appeared in a hearing ostensibly to evaluate Binalshibh's mental competence.

"He said, 'I did 9/11 and I'm proud of it, and I did it for God,'" Arias said of Binalshibh. "They're self-confessed murderers."

When President Obama ordered the prison camp at Guantanamo closed within a year, he took a major symbolic step to reduce what many people consider a stain on America's reputation for justice.

"The maintenance of Guantanamo, its symbol and the consequences of the symbolism around the world, it has grown terrorist organizations, not diminished terrorist organizations," Vice President Joe Biden said on CBS News' Face The Nation on Sunday.

"In the view of many around the world, Guantanamo represents indefinite detention, torture, and abuse," concluded a recent report from the Center for Strategic and International Studies, a Washington think-tank. "Guantanamo does serve as a recruitment tool for al Qaeda."

But the Obama administration's decision to close the facility leaves many unanswered questions: What will happen to 245 detainees who remain there, most of whom have never been charged with a crime? How will detainees that deserve to be prosecuted be handled? Where will detainees deserving release be sent? And where will those destined for continued detention be held in the future?

"We won't release people inside the United States," Vice President Biden insisted on Face The Nation. "They're either going to be moved and tried in American courts, tried in military courts, or they're going to be sent back to their own countries.

"We're going one prisoner at a time," he continued. "We're trying to figure out exactly what we've inherited here."

At its peak, there were 759 men detained at Guantanamo, but over the past seven years, the Pentagon has freed more than 500 of them. Despite Bush administration assertions that the detainees constituted the "worst of the worst" terrorists, except for 14 well-known "high value" detainees such as the alleged 9/11 conspirators, studies of the Pentagon's own case files by the Seton Hall University Law School tell a different story.

Looking primarily at the Combatant Status Review Tribunal reports for 558 detainees held as of August 2004, Professor Mark Denbeaux and a team of his law students discovered that 55 percent of those detainees had never committed a hostile act, while only eight percent had been labeled al Qaeda fighters.

"They swept up a whole lot of people by mistake without investigation, and they don't know what to do with them," Denbeaux told CBS News. "Only four percent of everyone in Guantanamo was captured by U.S. forces."

The first completed military commission prosecution was brought against Salim Hamdan, alleged to have once been a driver for al Qaeda's leader, Osama bin Laden. Last August, a military jury found Hamdan guilty of providing material support for terrorism (less than what military prosecutors alleged) and sentenced him to five-and-one-half years, crediting him for five years already served in Guantanamo. In November, the U.S. deported Hamdan to his native Yemen, and he has since been freed.

Men with much less evidence against them continue to languish at Guantanamo, according to the Seton Hall studies.

"The reality was that we had a handful of people in Guantanamo, who the military believed were fighters for al Qaeda, and now we're talking 40 or 50 people total. The rest of them were unrelated to al Qaeda, fighting and combat," said Denbeaux, who is helping defend two detainees from Tunisia.

The Pentagon has already cleared 60 detainees for release, but neither their home countries nor any other nations have agreed to accept them. Of the185 other detainees, about 100 are from Yemen, about 25 are from Afghanistan, with most of the rest from Pakistan, Saudi Arabia, Algeria and China.

What worries the Pentagon most are that released detainees might "rejoin the fight" against the U.S. The military claims 61 have done so; however, they have declined to release a complete list of their names.

"It is pure propaganda, and they know it, because they can't even justify or explain their numbers," Denbeaux said. He adds the number includes freed former detainees who've done nothing more than denounce their treatment in U.S. custody.

Most troublesome are cases like Abdallah Salih al-Ajmi, a Kuwaiti released in 2005 who two years later killed 13 Iraqi soldiers in a suicide bombing in Mosul; or Ali al-Shihri, a detainee who was deported back to Saudi Arabia in 2007. After the Saudis released him, Al-Shihri emerged as the deputy leader of al Qaeda's branch in bordering Yemen.

"Imprisonment only increased our persistence in our principles for which we went out, did jihad for, and were imprisoned for," al-Shihri said in a 19-minute video posted Friday on an Islamic militant Web site monitored by SITE Intelligence Group.

With the shutdown of Guantanamo due to become a reality by early next year, the Pentagon is surveying bases on the U.S. mainland that might house the remaining detainees. This includes the Marine base at Camp Pendleton, near San Diego, Calif.; the Navy base at Charleston, S.C.; and the Army's Fort Leavenworth, which hosts the military's only maximum security prison, near Kansas City.

But political resistance is brewing. Sen. Sam Brownback, R-Kan., has called the potential transfer to Leavenworth "unwise and unsafe," while his fellow Republican from Kansas, Sen. Pat Roberts, has vowed, "This is just not going to happen on our watch."

As for the legal disposition of the detainees, many with experience in prosecuting terrorism cases believe the existing federal criminal courts system is ultimately the preferred venue.

"It's a known system, and it gives people confidence and a certain comfort level," Michael Garcia, who just stepped down as U.S. Attorney for the Southern District of New York, tells CBS News. "Anything else, a commission, a hybrid court that some folks have talked about creating, is going to be challenged."

Over the past 15 years, Garcia and a series of federal prosecutors in the Southern District demonstrated how to handle such cases, often with classified evidence, convicting more than three dozen men (many with al Qaeda ties) for heinous terrorist acts or providing material support for terrorism.

The list includes the terrorists behind the first World Trade Center bombing in 1993, including that plot's leader, Ramzi Yousef, and the attacks on U.S. embassies in East Africa in 1998.

The list also includes a preventive prosecution of Egyptian Sheik Omar Abdel Rahman and nine followers for a thwarted plot to bomb a bridge, tunnels, an FBI building, and the United Nations in New York City.

"The process is going to be one of looking at each case, looking at what the evidence is and how that fits with existing cases or how that would make separate criminal charges," said Garcia, now with the law firm Kirkland & Ellis. "Some of them are actually charged in federal court already."

Mohammed is already under indictment in New York for a foiled early-'90s plot, in conjunction with Yousef, to blow up a dozen airliners over the Pacific Ocean. Another Guantanamo detainee, Ahmed Khalfan Ghailani, is under indictment for the embassy bombings.

But prosecutors could have significant hurdles to overcome under the rules in federal court. Were confessions coerced or made voluntarily? Is there admissible, corroborating evidence? And will the harsh treatment at Guantanamo, even torture, disqualify cases?

"Particularly when statements have been taken overseas by authorities of a foreign government that we've tried to use, you always have challenges, you always have challenges based on misconduct. You will certainly see that here," Garcia said.

Seven years hasn't lessened the pain for Andrew Arias and his siblings of losing their brother, Adam, a 37-year-old newlywed who loved to sing ballads.

"It wasn't an Arias wedding unless Adam sang two or three songs," Arias said.

With the fledgling military commissions now on hold, Arias is waiting for the last verse of the Guantanamo saga to be written. He said, "The trials are just getting started, and then they shut 'em down."

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