Update: Senator Daniel Inouye (D-HI) of the Senate Appropriations Committee told the Washington Times the money to close down Guantanamo and move prisoners would be restored to the final $94 billion supplemental bill for war funding. But some Democrats want the funding request to be accompanied by a plan of what to do with the remaining 240 prisoners. There is stiff resistance from members of both parties to bringing the prisoners within the continental United States. The Senate voted previously 94-3 against bringing Guantanamo detainees to the U.S. Senator Bernard Sanders (I-VT) is backing closure of the detention center and is willing to bring prisoners into the US penal system. "We have very violent criminals who are born and raised right here in the USA. I think we know how to handle violent people", he said. In his 100 day press conference 44 claimed he is implementing the oft spoken of "change" from the policies of the previous Regime by "closing the detention center at Guantanamo Bay." A politician should be judged by his actions, not his words, and by that measure 44 has been getting off easy. He did issue an executive order directing that the gulag be closed within a year. But only one prisoner has been released during his administration, Binyam Mohamed, no doubt due in part to the sensational revelations concerning that prisoner's torture at a CIA black site in Morocco. Only one other prisoner, Ayman Batarfi, has been cleared for release.
Attorney General Eric Holder has said that about 30 prisoners would be ready for release soon. It is unclear whether these prisoners are most of the 40 prisoners whose cases have already been reviewed either by courts or multiple military review boards and approved for release. The administration seems to be dragging its feet on the issue of prisoner release while engaging in a superficial public relations offensive intended to show it is changing the repudiated and deviant policies of its predecessor in office. Team 44 dropped the public use of the discredited term "enemy combatant"; yet in court filings it has maintained a definition for prisoners eerily similar to the one used by the Regime. In comparison a detained individual's support for the Taliban or Al Qaeda must now be "substantial". Granted some of the delay may be due to finding jurisdictions willing to take released detainees, or the legal requirement that detainees not be sent back to countries where they face torture by their own government such as the seventeen Chinese muslims cleared in federal habeas corpus proceedings. However, there are six cleared Saudis still in detention at Guantanamo despite that country's rehabilitation program for former jihadists[1].
What is more disturbing for civil rights advocates and problematic for the government, is a third group of prisoners described by hold over Defense Secretary Gates, as "the 50 to 100...who we cannot release and cannot try". The administration's request for $81 million to move prisoners was left out of an emergency war spending bill introduced in the U.S. House on Monday. Gates wanted the money as "a hedge" on building an alternative facility to contain Guantanamo detainees[2]. Secretary Gates seems to have in mind a system of preventive detention for those detainees deemed too dangerous to release, but who cannot be successfully convicted in a civilian court of law under stricter rules of evidence and procedure. Traditional notions of due process in this country do not recognize a system of preventive detention. Even permissible pre-trial detention is constitutionally limited by duration and the opportunity to apply for bail. Developing the legal capacity to hold undesirables forever should certainly chill the most ardent super-patriot, otherwise for what are they fighting?
[1] www.carnegieendowment.org/publications/index.cfm?fa=view&id=22155&prog=zgp&proj=zme
[2]In the administration review of the maintenance of Geneva Convention standards at Guantanamo mandated by 44's executive order, the detention camp passed, forced feedings and beatings of recalcitrant prisoners notwithstanding. Senator John McCain argues for preventive detention in a Wall Street Journal article. He admits the term "enemy combatant" was over inclusive, but relies on a DOD statistic that 1 in 10 detainees released from Guantanamo returned to the battlefield to buttress his conventional law of war argument. Hardly a frightening statistic, and an acceptable failure rate given the overwhelming amount of American firepower being poured out on villages of Afghanistan.