Ken Gude [Associate Director, International Rights and Responsibility Program, Center for American Progress]: "The news Thursday that Secretary of Defense Robert Gates is preparing for the closure of Guantanamo early in the Obama administration is more confirmation that the notorious prison's days are numbered. Yet while it is vitally important that our military leaders plan for every contingency, it is more than a little concerning that Secretary Gates has instructed his current staff to develop a plan "on how to shut it down [and] what would be required specifically to close it and move the detainees from that facility." There are things Secretary Gates can do right now that would ease the transition to the Obama administration – such as immediately suspend all activity in the military commissions – but having Bush administration officials develop what could be a competing proposal for closing Guantanamo is not one of them.

We know now that Guantanamo is going to be closed. It is good news that Secretary Gates is on board and has begun to prepare the military for that change in policy. If all the Secretary has asked his staff to develop is a plan to handle the logistical challenges of moving the detainees out of Guantanamo, then that is precisely what they should be doing right now and there can be no objection. It does not appear as if that is all that has been requested, however, and that could be a problem.

Shortly after Gates was selected as President-elect Obama's Secretary of Defense, he made news by suggesting that legislation would be required to close the prison and specifically mentioned a possible law to prevent released Guantanamo detainees from gaining entry into the United States as asylum seekers, a very odd proposal to say the least. It is clear that Gates' staff believes that it is necessary to pass new laws to govern the continued detention of Guantanamo detainees and that worries many advocates of closing Guantanamo. Ample authority already exists in U.S. and international law to put on trial those detainees accused of crimes, transfer many of the rest to their native or third countries, and in the rare instances when that is not sufficient, continue to hold those who can lawfully be detained as enemy combatants.

Legislation would only be required to establish a new regime of detention and trial, such as the horribly flawed national security court and preventive detention scheme. It beggars belief that the incoming Obama administration would attempt to fix the toxic Guantanamo prison and military commissions system with another new legal experiment. And herein lies the problem. Gates' Bush administration holdovers could put together a proposal to shut down Guantanamo at odds with the plan developed by the incoming Obama team, creating a conflict right out of the gate on an issue sure to receive massive attention early in Obama's term.

If Gates really wants to help his soon-to-be boss, he can suspend all activity in the military commissions. The fiasco surrounding Khalid Sheikh Mohammed's hearing a couple of weeks ago could be resolved and the military commission could accept his guilty plea just days before President-elect Obama takes office. If that occurs, the constitutional prohibition on double jeopardy may preclude a trial in U.S. courts.

If Gates is preparing for the closure of Guantanamo he must also be aware that the president-elect prefers trials in U.S. courts rather than the flawed military commissions. The commissions are in no way similar to regular Article III courts and the Military Commissions Act specifically designates the secretary of defense as the convening authority overseeing the entire process. KSM's offer to confess is not a sincere admission of guilt but rather a cynical ploy to use the illegitimacy of the military commissions to further his political objectives. A trial in an established U.S. court would deny him that chance. Secretary Gates has the power to stop the commissions and he should do so with immediate effect."