The Obama administration acknowledged Tuesday that it would be a violation of current law to transfer individuals from Guantanamo Bay in Cuba to its soon-to-be acquired Thomson prison in Illinois unless they are destined for a federal trial or military tribunal. In a conference call with reporters, a senior administration official said that detainees whose status entitles them to federal trials will be transferred directly to the jurisdictions where the trial will take place, that a number of detainees who will face military commissions will be transferred to the new prison, and that detainees who will be accommodated by another country will stay in Guantanamo -- for now -- until the arrangements are worked out.
But the official conceded that current law does not permit detainees who are not triable -- who may be detained indefinitely -- to be transferred from GTMO into the United States. Later, an administration official clarified that the executive branch is prohibited from funding the transfer of any detainees to the United States except for the purposes of prosecution.
"There are no specific cases to date that meet that standard that the president has signed off on, so I don't want to jump to any conclusion on that," the official said. "The bottom line is, we're trying to get to zero. If we have to detain any without trial, we'll do so as a last resort."
The official said that the administration wants Congress to authorize the funding of indefinite detention of detainees within the United States.
Congress, in doing so, would give its institutional imprimatur to the concept of presidentially ordered indefinite detention.
Right now, that authority is being claimed under the existing Authorization for the Use of Military Force against Al Qaeda, and it is sustained by a bit of a conveniently arrived-at veneer that the conflict with Al Qaeda is indefinite, and yet, at the same time, the administration intends to release or try every detainee -- if it can. Concretely, Obama's lawyers believe that periodic reviews of detention status and ongoing habeus corpus reviews are sufficient to meet its current legal and moral obligations. But officials have acknowledged to Congress that it could designate as many as 75 detainees as untriable -- and therefore susceptible to a regime of indefinite incarceration.
"The AUMF was ruled by the Supreme Court does grant the president that authority," the official said. "That authority that allows him to detain individuals at Guantanamo Bay now. ... We think that it vitally important that Congress be a coequal player in this understand[ing]."
What happens if Guantanamo Bay closes -- and is still populated by prisoners whose statuses haven't been determined? The administration isn't saying. They want Congress to help them make a decision.
A second administration official said that the Thomson prison would be the most secure in the nation once the Department of Defense takes over. It is surrounded by dual-sided electric stun fencing, monitored by a sophisticated fiber optic camera system, includes two armed perimeters, and "will be enhanced" by "additional" upgrades. More than 340 inmates in the federal prison system have connections to international terrorism, the official said.
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Marc Ambinder is a contributing editor at The Atlantic. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.