75 Gitmo Detainees in Limbo

Guantanamo BayMarc Ambinder finds a hidden news story in this WaPo report by Perry Bacon:

Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions. About 90 others have been cleared for repatriation or resettlement in a third country, and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

He correctly notes that, while Bacon’s piece focuses on the shifting mood of the Senate, the real story is that 75 of 215 Gitmo detainees — that is, more than a third of them — have been deemed “Fifth Category” types who will get neither a hearing nor a release.

This is remarkable, indeed, given the Obama administration’s public position on Gitmo.  Obama made it a point to order Guantanamo closed on his first full day in office and campaigned strongly against it.  But, once elected, he moderated his policy.

The reality is that we have these people locked up and have no  good options as to what to do with them. In many cases, they can’t be expatriated.  In others, there’s either not enough evidence to prove them “guilty” beyond reasonable doubt or said evidence is tainted by treatment deemed appropriate for foreign terrorist suspects but not innocent-until-proven-guilty criminal defendants.  Releasing them into American cities would not only be dangerous but political suicide.

So moving them to a Gitmo in all but name is the least bad option.

via Spencer Ackerman

FILED UNDER: Law and the Courts, National Security, Terrorism, , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. dman says:

    I guess campaigning to shut down Gitmo sounds better than campaigning to clean up Gitmo. It’s also easier said than done, which I guess is true of all campaign promises. At least we can take some satisfaction in knowing we are not expanding Gitmo.

  2. These small-minded hobgoblins are foolishly consistent, or something.

  3. Alex Knapp says:

    So moving them to a Gitmo in all but name is the least bad option.

    No it’s not. The United States could ratify the ICC and there would be ample ways of obtaining evidence that would satisfy that body, since it operates under civil code and uses different rules of evidence.

    The United States could establish hearings under the Geneva Conventions to determine if enough evidence existed to justify the detainees being held as prisoners of war.

    The United States could enter into a treaty arrangement with the home countries of the 75 detainees to determine their dispositions.

    And that’s just off the top of my head.

  4. steve says:

    Alex- From my readings, it sounds as though we have poor evidence and much of it is tainted.

    James-Israel just announced they are building more settlements. Shouldnt that be the big news of the day? What gives?


  5. Alex Knapp says:


    If the evidence is poor, we shouldn’t be detaining them.

  6. Your legalistic approach is necessarily limited Alex, and it is a shame that you neither recognize nor acknowledge that there are in fact limits that go beyond your hermetically sealed system. Here’s someone else’s opinion on this matter that you may respect:

    “[A] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.” — Thomas Jefferson

  7. Please substitute exigencies for limits in the last comment. My apologies for changing contexts in midstream of consciousness.

  8. Alex Knapp says:


    Is there any reasons to suspect that my options would be detrimental to the public safety? There is no compelling reason to deny these men the due process of law. If there is evidence sufficient to justify holding them, then fine. If there is not, then why do we assume that they are dangerous?

    The circumstances that Jefferson was discussing in his letter to Colvin (the context of this quote) were limited in duration and damage (e.g. Washington placing cannon on private property during a war) or things that I would disagree with him on (e.g. the President purchasing Florida without the consent of Congress).

    I would say that, with respect to Guantanamo Bay, these comments of Thomas Paine in his Dissertations on the First Principles of Government are more apt:

    “An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”

  9. Alex, simple answer, yes. I don’t think these non-uniformed, non-state actor round pegs fit very well into the established framework square holes you are trying to force them, whether it be civilian criminal trials or military Geneva Convention compliant trials. Perhaps they should be treated as spies captured in wartime and summarily executed. As I have said elsewhere, I don’t have many answers but it is ridiculously easy to come up with hard questions about what is happening, which gives me little confidence that we are pursuing wise choices.

  10. Alex Knapp says:


    I think that the language of the Geneva Conventions is broad enough to incorporate al-Qaeda and other similar organizations, but I admit that I would welcome a new protocol to the Conventions to deal with them more precisely and explicity.

    Under international law that has been ratified by the United States and is therefore the law of the land pursuant to the Constitution, summary execution is illegal, period, spy or no.

    If the law right now is held to be not applicable or specific, then lets write new law. Let’s not just allow the executive to act with impunity.

  11. al bee says:

    What is the mystery of Israel building? The Palestinians sat on their lands for 2000 years and accomplished absolutely nothing.

    Some of the land was give to the Jews to house the broken bodies of Nazi Germany. In 60 years they have accomplished a miracle. My God, more power to them. Israel has turned the cheek each time when pressured by the idiots in Washington. Each time the Palestinian have double crossed the world.

  12. “Releasing them into American cities would not only be dangerous but political suicide.”

    How far we’ve fallen when helping ones reelection is considered justification for detaining people indefinitely without due process. We’ve become a nation of cowards.

  13. davod says:

    “How far we’ve fallen when helping ones reelection is considered justification for detaining people indefinitely without due process. We’ve become a nation of cowards.”

    Not indefinitely without process. Until the end of hostilities after being ruled an unlawful combatant.

    Until the habeas corpus ruling overturned 200+ years of precedent. The rat bags could have been held as unlawful combatants for the life of the conflict.

    Holder’s arguments are really simple minded and unjustifiable. He argues against himself justifying use of the both systems. This alone should show the reasoning is political rather than judicial. Remember, Holders law firm is invested in the process. Remember, a number of the lawyers involved in defending detainees or fighting to overturn 200+ years of precedent are now working at DOJ.

    Shouldn’t Holder have recused himself, like the rat bags pushed Ashcroft to recuse himself from the decision making process.

  14. Dodd says:

    “It’s un-American to hold anyone indefinitely without trial.” – Jim Moran (D-VA)