News reports suggest that the Obama transition team may be pushing for an approach that could mean releasing within a year as many as 100 (or perhaps even more) Guantanamo detainees who appear to be dangerous but may not be prosecutable for any crimes.
In particular, a New York Times front-pager reported on January 13 that sources "said the incoming administration appeared to have rejected a proposal to seek a new law authorizing indefinite detention inside the United States" of any of the approximately 250 Guantanamo detainees.
The military has determined that only about 60 of the 250 detainees could be released relatively safely, and that only 80 of the rest could face trial by "military commissions."
This seems to imply that Obama will either continue to rely on Bush's legal arguments for continued detention without charges -- arguments that many Obama supporters have assailed -- or yield to the demands of left-leaning human-rights groups that he release any and all Guantanamo detainees who cannot be criminally prosecuted.
But the president-elect said on January 11, on ABC's This Week , that he wants "a process that adheres to [the] rule of law [but] doesn't result in releasing people who are intent on blowing us up." He also said that "many" detainees who "may be very dangerous" present special problems because "some of the evidence against them may be tainted even though it's true." And Eric Holder testified on Thursday, during the Senate confirmation hearing on his nomination to be attorney general, that "I don't think . . . we can release" people known to be dangerous.
What kind of process does Obama have in mind? If seeking a new detention law has been ruled out -- a scoop that The Times attributed somewhat shakily to "people who have conferred with transition officials" -- Obama would have only two options for dealing with the 100 or so apparently-dangerous-but-perhaps-not-prosecutable detainees.
The first option would be to continue Bush's military detention of these men as "enemy combatants," presumably in the mainland United States. But doing so would open Obama to accusations of simply relocating Bush's Guantanamo prison camp in the guise of closing it. It also would risk continuing Bush's losing streak in the courts, which are now hearing petitions for release by many Guantanamo detainees and also by some of the hundreds of U.S. prisoners in Afghanistan.
The second option would be to release or transfer to other countries all of those who cannot be prosecuted. That group could include men such as these:
* Abd al Rahman al Zahri, who the government claims had prior knowledge of the 9/11 attacks and who declared at a military hearing: "I'm not one of [Osama bin Laden's] men and not one of his individuals. I am one of his sons. I will kill myself for him and will also give my family and all of my money to him.... With the help of God, we will stand mujahedeen and terrorists against Americans."
* Mohammed al Qahtani, who, the public evidence strongly suggests, was sent by Al Qaeda from London to Orlando, Fla., to be the 20th hijacker in the 9/11 suicide attacks. He was turned back by an alert immigration agent at the Orlando airport on August 4, 2001, while Mohamed Atta was waiting to meet him. Qahtani has become a cause celebre among human-rights groups because he was subjected in 2002 to what many call torture. Susan Crawford, the senior official in charge of deciding whether to bring Guantanamo detainees to trial, dismissed all charges against him last May. She recently told The Washington Post's Bob Woodward that she would not allow any new charges to go forward because "we tortured Qahtani." But she added: "He's a very dangerous man. What do you do with him now if you don't charge him and try him? I would be hesitant to say, 'Let him go.' " The left-leaning Center for Constitutional Rights, which represents Qahtani, has said that he "should be sent back to Saudi Arabia's highly successful custodial rehabilitation program."
* Mohammad Ahmed Abdullah Saleh al Hanashi, who is probably more typical of the apparently-dangerous-but-perhaps-not-prosecutable group. He was Taliban cannon fodder. He admitted during a military hearing, "I was with the Taliban" and said he fought on the front lines against the Northern Alliance. Men such as him may be unlikely recruits for terrorist attacks against the U.S. but might well, if released, rejoin Taliban attacks on U.S. forces in Afghanistan.
Indeed, the Pentagon said on January 13 that 18 of the approximately 500 Guantanamo detainees already released have definitely returned "to the fight" against America and that another 43 are suspected of doing so. Critics gave these claims little credibility because the Pentagon refused to provide details.
Meanwhile, human-rights activists have been seeking to create the false impressions that not many of the Guantanamo detainees are dangerous; that those who are can be prosecuted; and that the rest can be safely released.
But the military has determined that only about 60 of the 250 detainees could be released relatively safely, if other countries would take them, and that only 80 of the rest (including 9/11 mastermind Khalid Shaikh Mohammed) could face trial for war crimes by Bush's special "military commissions."
Obama may decide that more than 60 are not dangerous. Otherwise, that leaves 110 or so detainees who are considered both too dangerous to release and not-prosecutable; at least, military commission prosecutors have found no basis for charging them or (in some cases) the charges have been dismissed.
The number who could be prosecuted might well be lower than 80 if Obama follows through on his declared intent to move any and all prosecutions of detainees to ordinary federal or military courts. The president-elect reportedly, and in my view rightly, plans to suspend use of the military commissions. They have been an international embarrassment, in part because their rules allow for use of some evidence obtained through coercive interrogation.
Some of the apparently dangerous detainees could not be convicted because there is no (or not enough) evidence that they have acted on their declared intent to kill Americans; some because the evidence against them was obtained by intelligence sources and methods too sensitive to be aired in a public trial or even shown to defendants; and some (perhaps including Qahtani) because the only strong evidence was obtained through coercive interrogation, involves hearsay, or is otherwise inadmissible.
The "prosecute or release" approach demanded by groups such as the ACLU and Amnesty International "fails to recognize the United States' legitimate interest in holding individuals fighting against it in armed conflict," in the words of a recent commentary by Georgetown law professor David Cole, whose view on this carries extra weight because he is a leading human-rights lawyer and Bush critic.
"There are .... as many as 100 detainees, who may not be prosecutable for a specific offense but who are too dangerous to release -- e.g., admitted Al Qaeda or Taliban fighters who have said that they would return to the battle in Afghanistan if released," Cole added. "These individuals can continue to be held for the duration of the ongoing armed conflict with the Taliban and Al Qaeda -- as prisoners of war, without criminal charge or criminal trial."
I disagree with Cole's implication that Qaeda terrorists are entitled to POW privileges, but he is right to say that "a law authorizing military detention only of those fighting for Al Qaeda or the Taliban ... and only for the duration of the ongoing conflict in Afghanistan" would be "consistent with international and constitutional law obligations."
Any such law should -- unlike the Bush approach -- specify elaborate procedures to ensure release of bystanders captured by mistake. To that end, Obama should urge Congress to add an overlay of due process protections akin to those in the criminal-justice system to traditional military detention of enemy prisoners.
Such a law would to some extent resemble the current Supreme Court-mandated process of piecemeal review of detainees' petitions for release by federal courts in Washington. But that process has problems, including the use of Bush's deeply flawed military "combatant status review tribunals," the lack of clear rules on how much (and what kind of) evidence the government must present to justify continued detention, and doubt whether judges can consider classified evidence in secret.
The best approach might be to establish a new national security court staffed by federal judges with special expertise to determine which detainees to hold and which to release. That approach has an array of expert advocates including former Bush Justice Department official Jack Goldsmith, former Clinton Justice Department official Neal Katyal, and Benjamin Wittes of the Brookings Institution.
If -- as urged by the ACLU, Amnesty International, Human Rights Watch, and others -- Obama rejects both the Bush approach and proposals for a new detention law, it could lead not only to release of dangerous Guantanamo detainees but also to a perverse unintended consequence: Military units in the field would have an incentive to kill more people, take fewer prisoners, and hold those they do take in remote places beyond the reach of the courts.
Such prospects may not trouble the self-appointed guardians of human rights. But they should trouble the president-elect.
This article appears in the January 17, 2009 edition of National Journal Magazine.