A yearlong review of evidence against men who are being held as terrorism suspects at Guantanamo has concluded that most of them should be released or transferred to third countries.
The review has angered human rights advocates, however, by concluding that "roughly" 50 of the detainees should be held indefinitely, even though there isn't enough valid evidence to prosecute them.
Only 35 of the men should face trial, either in civilian or military courts, the review concluded. That's far fewer than the 60 or 70 cases that the Pentagon's chief prosecutor has said his unit is preparing to try before military commissions.
The review, whose results have been divulged to a handful of reporters but not publicly announced, provides the first specific numbers for what the Obama administration thinks should be done with the detainees who are still at Guantanamo.
The prison camp has held about 770 prisoners since it opened eight years ago, according to statistics provided by an administration official, who agreed to detail the review only on the condition of anonymity because he wasn't authorized to speak publicly. As of Thursday, the Pentagon was holding 192 foreign captives at Guantanamo across a range of prison camps, including seven in a special segregation site for those whom federal judges have ordered to be released.
Nearly 580 have been released over the years, according to the official. "More than 530" of those were released during the administration of President George W. Bush, the official said.
Six agencies — the Departments of Defense, Justice, State and Homeland Security, as well as the staffs of Joint Chiefs Chairman Adm. Mike Mullen and Director of National Intelligence Dennis Blair — agreed unanimously that "roughly 110" prisoners who are still at Guantanamo were eligible for release, the official said.
Since the panel finished its work, four of those have been transferred to Europe, bringing the number of those eligible for release to 106.
The official didn't explain how the panel had reached its decisions and didn't break down the various categories of detainees by nationality.
According to the official, Obama's National Security Council still could revise the panel's conclusions "in light of variables that could change a detainee's status." Among those variables, the official said, might be court rulings ordering their release or a change of conditions in a country such as Yemen.
Nearly half the detainees at Guantanamo are Yemenis. Earlier this month, President Barack Obama ordered that no more detainees be released to Yemen because of the role Islamic militants there might have played in the Christmas Day bombing attempt of a Detroit-bound airliner.
The official provided no information on how many of the detainees in each category are among the 11 still being held whom U.S. district judges in Washington have ordered released.
The decision to hold as many as 50 detainees without charges rankled human right advocates, and it marks a turnabout for an administration that criticized the Bush administration for its indefinite-detention regime.
Like Bush, Obama has invoked Congress' authority to wage war and take prisoners after the Sept. 11, 2001, attacks as legal justification for holding the 50. A key distinction: The Obama administration has embraced federal court review — called habeas corpus — to examine the intelligence agencies' justification for holding the men, while the Bush administration fought the right of Guantanamo detainees to sue for their freedom, twice to the U.S. Supreme Court, and lost.
"The administration should not abandon its commitment to driving the number of detainees held without charge down to zero," Human Rights First President Elisa Massimino said. "If indefinite detention becomes the new 'go to' tool when prosecutors decide they cannot charge or try suspects, we will not have advanced."
Massimino said that holding terrorist suspects who couldn't be tried came with costs: "aiding terrorist recruitment, creating obstacles to cooperation with U.S. allies in counterterrorism operations and undermining U.S. standing in the world."
Who might be among the 50 was difficult to guess. One likely candidate is Mohammed al Qahtani, a Saudi whom the military initially charged with being part of the Sept. 11 conspiracy. Those charges were dropped in November 2008, however, after Pentagon official Susan Crawford, who must approve all military commission prosecutions, determined that Qahtani had been tortured in Guantanamo and couldn't be tried.
It's easier to fill out the ranks of the likely candidates authorized for trials, though only partially.
The names of 12 are already known: five, including alleged 9/11 mastermind Khalid Sheikh Mohammed, who are scheduled to be tried in civilian court in New York, and seven, including Abd al Rahim al Nashiri, a Yemeni who's accused of plotting the November 2000 attack on the USS Cole, who've been authorized for trials before military commissions.
Five other detainees have had preliminary military commission charges filed against them, though Crawford has yet to approve them.
That leaves at least 18 prisoners authorized for trial who've yet to be named.
(Rosenberg reports for The Miami Herald.)
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