50 Gitmo Detainees To Be Put In Indefinite Detention.

Charlie Savage reports the Obama administration intends to hold 50 of the remaining nearly 200 suspected terror detainees at Guantanamo Bay indefinitely without charge. For a long time, the administration had refused to say exactly how many detainees would be held this way, spurring some hope that the administration might not choose this path.

Jonathan Hafetz, a lawyer with the ACLU who has acted as counsel to Guantanamo Bay detainees, expressed his frustration with the administration's decision.

"The Obama administration has made the wrong choice. Rather than break with the failed policies of the past, it has decided to continue one of Guantanamo's most lawless aspects--the policy of indefinite detention without charge," Hafetz said. "It is an affront to the Constitution, and the principles on which this country was founded, that the government is still imprisoning people after eight years, without trial."

It's worth understanding how we got here. The Obama administration's Executive Task Force on Guantanamo Bay was necessary in part because the Bush administration left no comprehensive case files on the detainees they had captured. There was no "individual government entity" tasked with gathering and organizing the evidence against the people the administration was holding. And that was in part because the Bush administration had diminished the role of law enforcement agencies like the FBI in counterterrorism, relying instead on intelligence agencies. The nature of intelligence info is that it is secretive, often murky and not as definitive as the information collected by that collected by the FBI, precisely because the CIA doesn't gather evidence on people with the intention of charging them in court. Indeed, the Bush administration had no intention of doing that--they assumed they could just institute a lawless system, complete with military tribunals reverse engineered to ensure convictions. But even with a conservative leaning Supreme Court, the Bush administration's policies couldn't stand up to legal scrutiny. Nevertheless, after 2008, it was no longer their problem, and no longer their mess.

The mess Bush left for Obama on national security rivals the economic crisis in complexity. But that's no excuse for perpetuating a lawless system in which the government can imprison people indefinitely without charge, based on the unprovable assumption that they committed a crime, or worse, based on one that hasn't been committed yet. The strategic national security benefits of closing Gitmo will be fleeting if the U.S. continues to maintain a lawless detention regime, and simply moves the whole operation to the Thomson correctional facility in Illinois.

Ken Gude from the Center for American Progress explains that while the indefinite detention of those captured on the battlefield captures can be justified, he expects that at least a few of the indefinitely detained will not fit that category. "I'm pretty sure the details are likely to show that the majority of these detainees were captured in a zone of combat but a handful won't," says Gude. "And unfortunately, the handful makes all the difference."

-- A. Serwer

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