Updated 9:56 a.m.
A task force charged with determining the fate of Guantanamo Bay prisoners has completed it work, heralding a new phase in efforts to resolve the status of prisoners in indefinite detention.
Created by President Barack Obama on his second day of office, the task force recommended that 50 of the 196 detainees at the military facility in Cuba be held indefinitely without trial, The Washington Post reports.
The task force deemed the detainees were too dangerous to release but could not be tried in federal court or military commissions because doing so could compromise intelligence-gathering methods and because detainees could challenge evidence obtained through coercion.
Their fate will now be decided by Obama’s National Security Council, an administration official said. Obama has said his authority to hold inmates indefinitely derives from Congress’ Authorization for Use of Military Force, passed in response to the Sept. 11, 2001 attacks.
The possibility that scores of detainees could be held on U.S. soil, indefinitely, is almost certain stoke tensions between the Obama administration and Congress over the closure of the military-run prison.
Obama has already drawn criticism from human-rights and civil liberties groups for even suggesting there are prisoners who cannot be tried for lack of evidence but who pose too great a threat to release. These groups are likely to bear down harder on the president as the NSC attempts to solve a problem the task force, which comprised officials from law enforcement and intelligence agencies, could not.
Though the Justice Department has not released an official tally, task force officials said in early January that of the 242 detainees imprisoned at Guantanamo at the start of the Obama administration, about 40 were referred for prosecution — among them, Khalid Sheikh Mohammed, the self-described mastermind of the Sept. 11, 2001, attacks — and roughly 130 were recommended for transfer.
Of the latter group, more than 40 have been repatriated or resettled in other countries. (In a BBC interview that aired last week, the director of the task force, Matthew Olsen, said more than 100 detainees had been approved for transfer and 40 had been set aside for possible prosecution.)
According to the Post, the task force has recommended that Guantanamo Bay detainees be divided into three groups:
about 35 who should be prosecuted in federal or military courts; at least 110 who can be released, either immediately or eventually; and the nearly 50 who must be detained without trial.
In the meantime, the men are challenging their confinement in federal district court.
There is also the separate problem of the roughly 40 Yemenis who are estimated to be already approved for transfer. The administration has halted transfers to their country in the wake of the Christmas Day bombing attempt.
Taken together, the men recommended for indefinite detention and the 40 Yemenis account for nearly half the detainees still at Guantanamo.
David Remes, a human rights lawyer in Washington who represents 15 Yemeni detainees at Guantanamo, called the figures “eye-popping.”
“You’re left with a scenario in which a majority of the men still at Guantanamo will remain there for the foreseeable future.Yet none of them have been accused of any crime, and many have been approved for transfer,” Remes said, adding, ”The irony is that President Bush was on target to close Guantanamo. Now that may never happen.”
President Obama and his aides have been able to address prolonged detention largely in the abstract, but with the task force’s work done and its recommendations made, the administration will have to confront more questions about the issue — and more criticism.
“Whatever the number is, it’s too high,” said Ben Wizner, a national security lawyer with the American Civil Liberties Union. “If anyone can’t be prosecuted under our over-broad material support law” that bars assisting terrorist groups in any way, ”then we don’t have enough evidence to hold them,” Wizner said.
David Maddox, a retired U.S. Army general who has advocated for civilian trials, said whittling down the remaining prisoners to zero would be a difficult task, particularly in cases where the government extracted evidence of guilt through harsh techniques or torture. (See: Retired Generals Hit Back At Critics of ‘Gitmo’ Closure.)
“At some point there has got to be a reasonable trade. Keeping that individual without any charges — no legal action taken against them — generates how many more terrorists versus how much can that individual do if he or she were released?” Maddox said. “But that’s the dilemma.”
But he said he was encouraged by remarks Holder made during a November meeting with Maddox and others.
“Not that we had any problem with the Attorney General at all, but he didn’t initially say that their objective was to get the number to zero, and we felt strongly that the longer we keep people with no charges indefinitely confined, it is not in our interest,” Maddox said. “He came back and said very clearly and said that was their goal too.”
Diplomatic and political problems forced Obama to abandon his Jan. 22 deadline for closing the prison. Foreign governments have been reluctant to accept Guantanamo Bay detainees, and many members of Congress oppose bringing them to the United States, citing security concerns.
The White House last month announced plans to retrofit a maximum-security prison in Northwest Illinois to receive “a limited number” of Guantanamo detainees.
Administration officials said the Thompson Correctional Center would be used to house detainees charged in military commissions, as well as detainees whom the NSC determined could not prosecuted in federal court or transferred into foreign custody.
But the plan has already encountered obstacles.
The Bureau of Prisons does not have enough money to pay for the center, and Congress declined to finance the project in the military spending bill for the 2010 fiscal year, likely delaying completion until 2011, at the earliest.
Moreover, administration officials acknowledged that the plan would require changes to a law forbidding the transfer detainees to the United States, except to face prosecution. Republicans have introduced legislation that would put further restrictions on detainee transfers.
The task force’s yearlong review was conducted by officials from agencies including the Defense Department, the Joint Chiefs of Staff, and Office of the Director of National Intelligence, as well as the Departments of State, Justice and Homeland Security.
More than 60 career prosecutors, agents, analysts and attorneys picked through detainee files. Detainee transfers required a unanimous decision by all agencies on the task force.
Newsweek reported in July that the task force had agreed the Obama administration should claim the right to hold on to Guantanamo Bay prisoners indefinitely, but there were divisions over the legal basis for holding detainees who are not charged with any crimes.
Below is an except from Obama’s May speech at the National Archives, addressing the issue of indefinite detention:
But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
For these reasons, any detainees at Guantanamo who continue to be held, and for whom no prosecution is planned, will be held only under authority granted by Congress in 2001 under the Authorization for Use of Military Force, as informed by the law of war. In addition, the Supreme Court ruled in Boumediene v. Bush, 128 S. Ct. 2229 (2008), that all detainees currently held at Guantanamo have the right to file petitions for habeas corpus to challenge their detention in Federal court. Detainees will continue to have that right when they are transferred to the United States.
Ryan Reilly contributed to this report.