The White House is considering whether to issue an executive order to indefinitely imprison a small number of Guantanamo Bay detainees, concerned that Congress might otherwise stymie its plans to quickly close the naval prison in Cuba.
Under the proposal, detainees considered too dangerous to prosecute or release would be kept in confinement in the U.S. or possibly overseas, two administration officials said Friday. Otherwise, the White House could get bogged down for months seeking agreement with Congress on a new legal detention system.
No final decisions have been made about the order, which would be the fourth major mandate by President Barack Obama to deal with how the United States treats and prosecutes terror suspects and foreign fighters.
One of the officials said the order, if issued, would not take effect until after the Oct. 1 start of the 2010 fiscal year. Already, Congress has blocked the administration from spending any money this year to imprison the detainees in the United States — which in turn could slow or even halt Obama’s pledge to close the prison by Jan. 21.
The administration also is considering asking Congress to pass new laws that would allow the indefinite detentions, the official said.
Both the officials spoke Friday on condition of anonymity because they were not authorized to discuss the still-tentative issue publicly. The possibility of an executive order was first reported by the investigative group ProPublica and The Washington Post.
Christopher Anders, senior legislative counsel for the American Civil Liberties Union Washington office, says the organization strongly opposes any plans for indefinite detention of prisoners.
"We’re saying it shouldn’t be done at all," he said Friday.
Without legislative backing, an executive order is the only route Obama has to get the needed authority.
In a statement Friday night, Senate Republican Leader Mitch McConnell cast doubt that Congress would approve funding for transferring or imprisoning detainees in the U.S. without detailed plans on how it would work.
Lawmakers this month blocked $80 million the Obama administration had requested for transferring the detainees. Without the money, Obama’s order can’t be carried out.
"Bipartisan majorities of Congress and the American people oppose closing Guantanamo without a plan, and several important questions remain unanswered," McConnell said. He said Obama demanded the transfers "before the administration even has a place to put the detainees who are housed there, any plan for military commissions, or any articulated plan for indefinite detention."
McConnell added: "The defense budget request for fiscal year 2010 includes a similar funding request, so the Senate will consider this matter again in the near future."
Obama’s order also would only apply to current detainees at Guantanamo — and not ones caught and held in future counterinsurgent battles.
There are 229 detainees currently being held at Guantanamo. So far, 11 are expected to be tried in military tribunals, and at least one — Ahmed Ghailani, a Tanzanian accused in two American embassy bombings a decade ago — has been transferred to United States for prosecution by a civilian federal court in Manhattan.
Still others, including four Chinese Muslims known as Uighurs who were transferred to Bermuda earlier this month, have been sent to foreign nations. The Obama administration is trying to relocate as many as 100 Yemeni detainees to Saudi Arabia for rehabilitation.
Obama said last month he was looking at continued imprisonment for a small number of Guantanamo detainees whom he described as too dangerous to release. He called it "the toughest issue we will face."
It’s not clear how many detainees could fall into that category. Defense and Justice Department officials have privately said at least some could be freed at trial because prosecutors would be reluctant to expose classified evidence against the detainees. Some of that evidence also might be thrown out because of how it was obtained — potentially by cruel, inhuman or degrading treatment.
A Pentagon task force is currently reviewing every case to see which are eligible for transfer or release, which could face trial in civilian U.S. courts, which are best suited to some version of a military commission and which are believed too dangerous to free.
Underscoring the difficulty of where to send the detainees before Guantanamo closes, a senior Defense official said some detainees who were picked up as enemy combatants cannot be charged with war crimes or terrorism even though they are believed to pose a threat. If no country volunteers to take them, traditional law of war authority allows the United States government to hold them until the end of hostilities, said the official, who also spoke on condition of anonymity.
Civil rights advocates and constitutional scholars accused Obama of parroting the detention policies of former Republican President George W. Bush.
"Prolonged imprisonment without trial is exactly the Guantanamo system that the president promised to shut down," Shayana Kadidal, a senior attorney for the Center for Constitutional Rights, said in a statement Friday.
He added: "If the last eight years have taught us anything, it’s that executive overreach, left to continue unchecked for many years, has a tendency to harden into precedent."