Solving The Fifth Category

The good news about the White House's decision to transfer detainees from Guantanamo Bay to Thomson, Illinois is that the majority of them will, finally, be dealt with legally. As President Obama laid out in a May speech on national security, there are four categories of detainees whose detentions can be legally resolved: those who will face civilian trial, like so-called Sept. 11 "mastermind" Khalid Sheikh Mohammed; those who will face military tribunal; those who will be deported to another country's legal system; and those who will be released, either to their home country or elsewhere.

However, in that speech, Obama articulated a "fifth category" of detainees for whom none of these options are viable. These are detainees whom the White House believes are a threat to national security and doesn't want released but who cannot face trial due to evidentiary issues. These include post-hoc investigations, fast-and-loose translating work in the field, and, more than anything else, torture. Trying a suspect who has been tortured is extremely difficult and judges may have no choice but to dismiss any related evidence. The legal system doesn't give Obama's Department of Justice a pass just because the prisoners weren't tortured on their watch. As many as 75 detainees fall under the fifth category. They are the real challenge for closing Guantanamo.

As Marc explains, holding someone indefinitely on U.S. soil is illegal. The White House knows this and recognizes it. The Bush administration derived the authority to hold someone indefinitely off U.S. soil -- say, at Guantanamo Bay or at Bagram Air Force Base in Afghanistan -- from the Authorization for Use of Military Force (AUMF) passed by Congress on Sept. 18, 2001. This was the declaration of the "war on terror" in which, per its treatment as a war, an "enemy combatant" can be held until the cessation of hostilities. But no one expects that to happen within any of our lifetimes. Thus their detention becomes indefinite. If Guantanamo closes and these prisoners are transferred to Illinois, even the broadest interpretation of the AUMF will not justify holding them indefinitely. Basic constitutional rights like due process and habeas corpus are simply unavoidable, and rightly so. The Supreme Court's decision in Hamdad v. Rumsfeld affirmed as much. Clearly, something must change.

There are three options I can see for the administration in dealing with the fifth category detainees.

1. Seek congressional authorization to hold them indefinitely on U.S. soil. The White House has previously signaled that it would not do this, but Marc reports that policy may now be changing: "The [senior administration] official said that the administration wants Congress to authorize the funding of indefinite detention of detainees within the United States." But the politics of this could be, well, difficult. Congress today is far more Democratic than it was in Sept. 2001 when it granted the AUMF to President Bush, who basically had carte blanche on national security matters at the time. The conditions under which Bush secured his authorizations were once in a lifetime. Can Obama, following the grueling congressional battle for health care, really get something even more sweeping than the original AUMF?

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Max Fisher is a former writer and editor at The Atlantic.

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