Solving The Fifth Category

What to do with detainees that can't be transferred, can't be released?

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?

2. Ship them to another facility abroad. The detention center at Bagram Air Force Base in Afghanistan is still open for business. While moving detainees there wouldn't require congressional approval, it would appear so transparently hypocritical of the White House that it seems just as unlikely. To borrow a phrase from Amnesty International, it would be broadly perceived as Obama "changing the zip code of Guantanamo." Keep in mind that Obama campaigned on closing Guantanamo. While he might be able to justify moving indefinite detainees into the U.S. as an improvement, moving them to the other side of the world is not so easy to spin.

3. Expand the first four categories of detainees to get the fifth category down to zero. The administration appears to already be hard at work on whittling down the fifth category of detainees by finding legal solutions for them. This could include releasing detainees who cannot return home to third countries, much like the Uighurs -- Chinese Muslim dissidents held for years at Guantanamo -- were released to Bermuda. The U.S. could also pursue diplomatic agreements to deport detainees to the prison systems of their home countries. Yemeni detainees, for example, make up 40% of Guantanamo's population; overcoming failed efforts to hand them over to Yemen could reduce the fifth category significantly. Finally, the White House may hope that the trial of Khalid Sheikh Mohammed, if it goes well, could open the door to more civilian trials of detainees. Cutting down the fifth category in this way would be incredibly arduous but may well be the most legally and politically viable solution. Yesterday, Swiss authorities announced they would take one detainee, allowing him to settle in their country. This likely came after much diplomatic wrangling by the White House, but if they can reproduce such tiny successes enough times, it may well work.

Like the U.S. abuses that make them unsuitable to go to trial, the 75 fifth category detainees are relics of the Bush administration. They are an incredible legal challenge for Bush's successor, but they are finite in number. If Obama is to end indefinite detention, he may have to find a unique, individual solution for every single one. Should he succeed, it would be a victory for him and for the American legal and justice systems. But should he fail, the prospect of housing detainees indefinitely, whether at home or abroad, will likely haunt him for the duration of his presidency.