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Despite hopes that closing the prison at Guantanamo Bay would end practices of permanently detaining suspected terrorists, the Washington Post reports that about 75 detainees could be locked up indefinitely. Those detainees have been "deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material." So-called "fifth category" detainees are legally and politically problematic, especially with the Obama administration's stated desire of moving past Bush-era detention policies.


  • How Obama Got There The Atlantic's Marc Ambinder digs the detail out of the back of a Washington Post story. "If true, that means that there are 75 so-called 'Fifth Category' detainees who might be subject to indefinite detention without trial," he writes, acknowledging that the Obama administration anticipated keeping less permanent detainees. "At the time, administration officials insisted that only a small fraction of detainees would be included in this category. At the time, though, the administration had only begun to review the evidence files and might have simply assumed that the former administration could not have been as totally reckless as it turned out to have been."
  • 'Neo-Guantanamo' At Bagram Spencer Ackerman anticipates that the White House will look to avoid a battle with the courts. "Will the courts ultimately decide that the administration doesn't, in fact, have the power to hold them without charge? And where will they be held if Guantanamo is to close? After all, if they're moved into the United States, the courts will almost certainly exercise jurisdiction over them. A possible clue comes in a recent and widely discussed report from Ken Gude of the well-connected Center for American Progress. As my colleague Daphne Eviatar reported, Gude proposed simply sending the detainees to Bagram Air Field in Afghanistan -- which would, in effect, create Neo-Guantanamo."
  • Bagram Wouldn't Work The American Prospect's Adam Serwer explains why "Bagram is not a solution" for these detainees. "Sending 'fifth category' detainees captured in third countries would jeopardize the government's position in appealing the judicial ruling that granted detainees captured in third countries and held at Bagram habeas rights." He quotes a Bush-era official charged with detainee policy, who says, "If the government starts simply swapping detainees among the facilities, it hurts its case that for all these reasons Bagram should be treated differently as a legal matter."
  • Jeopardizes KSM Trial Salon Glenn Greenwald decries the move, which he says makes Obama's civilian trial for Khaleid Shaikh Mohammed a hoax. "[Attorney General] Eric Holder struggled all day to justify his decision to put Khalid Sheikh Mohammed on trial because he has no coherent principle to invoke," Greenwald writes. "Once you endorse the notion that the Government has the right to imprison people not captured on any battlefield without giving them trials -- as the Obama administration is doing explicitly and implicitly -- what convincing rationale can anyone offer to justify giving Mohammed and other 9/11 defendants a real trial in New York?"

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