President Obama acknowledged publicly for the first time yesterday that some detainees at Guantanamo Bay may have to be held without trial indefinitely, siding with conservative national security advocates on one of the most contentious issues raised by the closing of the military prison in Cuba.
"We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country," Obama said. "But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States."
Some human rights advocates criticized Obama for adopting the idea that some detainees are not entitled to a trial. Others said the president was boxed in by cases inherited from the Bush administration in which possible prosecution had been irretrievably compromised by coercive interrogation.
The president stopped short of saying he would institutionalize indefinite detention for future captives.
"The issue is framed pretty exclusively in terms of existing Guantanamo detainees," said Tom Malinowski, the head of Human Rights Watch's Washington office. "There is a big difference between employing an extraordinary mechanism to deal with legacy cases compromised because of Bush administration actions and saying we need a permanent national security regime."
But Michael Ratner, president of the Center for Constitutional Rights, said employing preventive detention simply because some cases at Guantanamo are too difficult to prosecute would involve the kind of legal expediency that Obama said was a hallmark of his predecessor's policies.
"My question is not only what happens to those people who may be perpetually in prison but what kind of precedent does that set for the future?" Ratner said. "It's not one I find constitutional or acceptable. Opening that door even for a few Guantanamo detainees is anathema. He is closing Guantanamo physically, but he's repackaging it with a little more legal gloss."
Obama did not lay out the legal underpinnings of preventive detention yesterday, speaking only of "a system that involves judicial and congressional oversight." He could hold detainees under a law-of-war theory that they are combatants or, more radically, create a national security court under domestic legislation to back such a detention system. The Supreme Court has already ruled that detainees are entitled to a judicial review of their detention.
Even advocates of indefinite detention backed by judicial review, such as Jack Goldsmith, head of the Office of Legal Counsel in the Bush administration and now a law professor at Harvard University, recognize that such a system is deeply controversial because the war against al-Qaeda is indefinite, the likelihood of mistaken identity is much higher than in traditional warfare in which combatants wear uniforms, and many of those detained are citizens of allied countries that do not view the conflict as a war and regard terrorism as an exclusively criminal matter.
"I don't think that those reasons argue for ending the detention rationale; I think they argue for being a hell of a lot more careful with the detention rationale, for making sure that we minimize mistakes, that we don't have erroneous long-term detentions," Goldsmith said at a seminar this month with reporters at the Center for the Constitution at James Madison's Montpelier in Virginia.
Obama said any system of detention "must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified." Goldsmith and other scholars have said such oversight could include annual or bi-annual reviews by a national security court in which the government's burden of proof to extend detention increases over time.
An interagency panel led by the Justice Department is examining long-term detention policy and is expected to report this summer.
Apart from those who cannot be tried but must be held, Obama laid out four other categories that would apply to the 240 detainees remaining at Guantanamo: those who can be tried in federal court, those who will be brought before revamped military commissions, those ordered released by U.S. courts and those who can be transferred to other countries.
Obama described preventive detention as the most difficult issue raised by Guantanamo. "Examples of that threat include 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.
He did not say why those offenses could not be prosecuted, but legal scholars have previously said that some intelligence may be too raw for court and that some offenses now considered material support for terrorism were not crimes until counterterrorism laws were expanded after Sept. 11, 2001.
Another major constraint is evidence tainted by the abuse of prisoners. In the case of Mohammed al-Qahtani, a Saudi who allegedly planned to participate in the 2001 attacks, the Pentagon official in charge of referring detainees to trial before military commissions decided not to prosecute. Susan G. Crawford, a Bush appointee, told The Washington Post in January that "his treatment met the legal definition of torture. And that's why I did not refer the case."
Staff researcher Julie Tate contributed to this report.