All the President has to do is rule as the Chief law enforcement officer in the land, which as President he is, that the Prisoners in Guantanamo were illegally held more the six months without a trial and thus violated the Constitutional clause setting forth the right to a speedy trial. Release them on that ground, given them about $10,000 a piece (which will be off set by any judgment they will received for the illegal detainment if and when such judgment is entered) and tell them they on they own. Many will go back to the country they came from, some will want to go to other countries (and those Countries will accept them). That leaves only those prisoners who do NOT want to go back to their country or any other country that wants them. At that point we can move them into the US but never given them the legal right to be in the US. They live here, but not legally and whenever it becomes legal to remove them safely to their home country, we should do so (or to any third country that wants them).
If the President would do that, the right wing will make a big deal about it and then it will die, take about three months. Any attack on the decision would be one that he is following the Bill OF Rights including the Right to a Speedy Trial, and ten years without a trial is NOT a speedy trial.
The other argument that these are "enemy combatants" all he has to answer is that the US signed the UN treaty defining who and who is not a combatant. Under that treaty if these are Combatants then they are entitled to all of the rights of the Conventions, including the right to PAY (Set by treaty) and that any restrictions on them will be restricted to those restrictions that prevents them from harming the US (i.e. released on parole if it is determined they can do no harm to the US), right to be seen by a Red Cross representative etc. These rights extend to people who take up arms against an invading force (as the US did in Iraq and Afghanistan) and oppose the occupation of their country. If the prisoners fall into this category the US had a duty to return them to Afghanistan or Iraq whenever the war stopped. The US did not and thus the US has a duty to end their imprisonment under the UN Conventions.
Bush invented a third Category "unlawful combatants" who were denied their rights as criminals (criminals do have rights, including the right to a TRIAL to see if they are criminals) AND then to deny them rights as Combatants under the UN Convention. All Obama has to say is such category is NOT recognized under US law nor International law for the UN Treaty was written to cover ALL possible combatants and thus you fit under one or the other not some third made up category because Bush did NOT have the evidence needed to convict them of anything NOR did he want to treat them as Solders. Bush wanted to imprison people, just because they opposed what Bush wanted done and if that does NOT scare you, please note the US Courts have made it a policy to avoid ruling on these illegal detentions for they know they are illegal but they also know Bush and it now appears Obama want to be able to arrest people without trial. In times of crisis the Courts have NEVER protected people, they wait till the crisis is over then make a ruling. This is what they did during the Impeachment Trial Crisis of Andrew Johnson, During the Red Scare of the 1940s and 1950s and are doing today, delay any decision till the American People are willing support the Court on that decision.
Thus the courts will NOT decide on Guantanamo and thus unless Obama actually does something, this will fester and fester till someone decides these prisoners have to be released, paid for they time while in Prison and then sent back home. Obama is so worried about being attacked for such a decision, he has refused to do so and thus have left it fester. Obama can blame no one but himself and the sooner he accepts the fact he has to make a decision and release these prisoners this problem will continue to fester.
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