Detainees, Repatriation and Recidivism: An Update

Marc Ambinder Apr 9 2010, 3:10 PM ET

So how's President Obama's detainee policy coming along? Slowly. A senior administration official would only say that discussions with Congress -- that is, Democrats and Sen. Lindsey Graham -- are "ongoing" about a legal framework. But frustration at the lack of public backstop from the White House is pervasive among senior officials at the Departments of Justice, State and Defense, all of whom want the Guantanamo Bay detention camp closed and the prisoners properly dealt with. There's also a sense that the chance to build a political consensus around a sustainable, humane and transparent detention policy is gone -- and that the longer we don't hear from the president, the easier it is for Republicans to demagogue the issue. Here's an update on the raw numbers:

The administration's special envoy to Guantanamo, Amb. Daniel Fried, has successfully repatriated 31 detainees. 3 have been sent to third countries. 2 have been sent to Italy for prosecution.

Not including the Yemeni detainees, there are 41 cleared detainees who are eligible for either repatriation or resettlement in a third country.

There are about 35 detainees who are deemed to be triable, either using the military tribunals that the Obama administration endorsed (hastily, they will admit, in retrospect) or in federal courts. Congress and the executive branch haven't agreed on how this will work, and the courts are getting frustrated.

Then there's the 50 or so detainees considered "law of war" detainees by the administration; these are the Category Five detainees whom the government doesn't want to release. Hugely controversial; Obama doesn't want to codify indefinite detention into law but might have to in order to close Gitmo. Not the sort of debate he wants to have before the midterms.

The Yemenis pose a real problem; the U.S. had cleared 30 for release but doesn't believe that the Yemeni government can monitor them effectively. That's angered the Yemeni government, and, increasingly, it's angering the Yemeni populace. Understandably, the U.S. is even more wary of repatriating Yemeni detainees after the Christmas Day bombing attempt. U.S. officials are not confident that Yemen's rehabilitation program proposals are sound.

The recidivism rate of the 558 official Guantanamo detainees is hotly debated. The Defense Intelligence Agency confirms that about 10 percent returned to battle or terrorism; an additional 11.2 percent of the released detainees are suspected of having done so.

A small fraction of the number, however, remains at large -- so most of those confirmed to have returned to terrorism have been recpatured, are imprisoned, or have been killed.