The Obama administration is developing a system to hold terrorism suspects in indefinite detention without charge based on an assessment that they are too dangerous to release.
In a major national security speech Thursday, President Obama unveiled the most detailed account yet of his administration's emerging approach to countering the threat of Al Qaeda terrorism. It included the certainty that many – and perhaps most – of the 240 detainees now housed at the US terror prison camp at Guantánamo Bay, Cuba, will be brought to American soil to stand trial or for long-term preventative detention.
"I want to be honest with you, this is the toughest issue we will face," the president said, speaking at the National Archives within sight of the US Constitution and Declaration of Independence.
"We are going to exhaust every avenue that we have to prosecute those at Guantánamo who pose a danger to our country," he said. "But even when this process is complete, there will be a number of people who cannot be prosecuted for past crimes because evidence might be tainted, but who nonetheless pose a threat to the security of the United States."
Announcement of the preventative detention policy brought swift criticism.
"Allowing detention without trial creates a dangerous loophole in our justice system that mimics the Bush administration's abusive approach to fighting terrorism," Kenneth Roth, executive director of Human Rights Watch, said in a statement.
Congress balks at relocating detainees to US
The president's speech comes at a time when his administration is caught in a cross-fire of criticism from both the left and the right over Mr. Obama's pledge to close Guantánamo by January.
Members of Congress have balked at proposals to bring Guantánamo detainees into the United States for detention or trial. Many say they are concerned it could make their home state or district a potential target for terrorism.
Underscoring the fear, the Democratic-controlled Senate voted 90 to 6 on Wednesday to strip $80 million requested by Obama to close down Guantánamo. Lawmakers want assurances that the detainees will not be transferred within US borders.
In his speech, Obama made clear that a significant aspect of closing Guantánamo would necessarily involve bringing terrorism suspects to the US. He sought to reassure lawmakers and the American people that the move would not make them less safe.
"We are not going to release anyone if it would endanger our national security," Obama said. "Nor will we release detainees within the United States who endanger the American people."
The president said his administration would transfer detainees to maximum-security prison facilities designed to hold "all manner of dangerous and violent criminals."
Obama's five-part strategy
The president laid out a five-part strategy to draw down the population at Guantánamo.
First, detainees who can be tried in the civilian federal court system for alleged crimes will be transferred to the US for trial. The first such transfer will be Ahmed Khalfan Ghailani to stand trial in New York on charges that he played a role in the 1998 bombing of the US Embassy in Tanzania.
Second, detainees with more problematic cases will be sent for trial to the military commission process set up under the Bush administration, except with beefed-up defendant protections.
Third, 21 detainees have already been ordered released by federal judges in Washington as a result of habeas corpus lawsuits. Efforts are under way to facilitate those releases.
Fourth, an Obama administration review team has identified 50 detainees for transfer to other countries for release, rehabilitation, or continued detention.
"Finally, there remains the question of detainees at Guantánamo who cannot be prosecuted yet who pose a clear danger to the American people," Obama said. Among examples he offered: "people who have received extensive explosives training at Al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans."
He said candidates for indefinite detention without charge would be "people who, in effect, remain at war with the United States."
This fifth category will probably be the most contentious among Obama's core of liberal supporters, many of whom were sharply critical of the enemy combatant system developed under the Bush administration.
A call for executive oversight
Obama sought to distance his proposal from the Bush policy. "We must recognize that these detention policies cannot be unbounded," he said. "They can't be based on what I or the executive branch decides alone."
He said the preventative detention program would be in line with the "rule of law." It would feature defensible and lawful standards and fair procedures, including periodic review, the president said.
"In our constitutional system, prolonged detention should not be the decision of any one man," he said. "If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight."
The president said his administration would work with Congress to develop an appropriate legal regime "consistent with our values and our Constitution."