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82 Inmates Cleared but Still Held at Guantanamo

A detainee looks through fencing in the U.S. prison at Guantanamo Bay, where 385 prisoners remain more than five years after the facility opened.
A detainee looks through fencing in the U.S. prison at Guantanamo Bay, where 385 prisoners remain more than five years after the facility opened. (By Brennan Linsley -- Associated Press)

Other prisoner advocates said the Bush administration has made its task more difficult by exaggerating the threat posed by most Guantanamo inmates -- officials repeatedly called them "the worst of the worst" -- and refusing to acknowledge mistaken detentions.

Foreign governments have also questioned why U.S. officials should expect other countries to pitch in, given that Washington won't offer asylum to detainees either.

"This is a problem of our own creation, and yet we expect other countries to shoulder the entire burden of a solution," said Ben Wizner, staff attorney with the American Civil Liberties Union. "There needs to be a worldwide solution here. The U.S. has to bear some of that burden. It can't simply expect its partners and allies to absorb all its detainees."

The 82 cleared prisoners who remain stuck in limbo come from 16 countries in the Middle East, North Africa and South Asia, according to defense attorneys who have received official notification of their clients' status.

The 17 Chinese Muslim separatists make up the largest contingent. Other countries with multiple prisoners awaiting release include Afghanistan, Sudan, Tunisia, Uzbekistan and Yemen.

The Pentagon has reduced the population at Guantanamo by roughly half since the peak of 680 people in May 2003, generally by sending prisoners back to their native countries. But U.S. officials said progress has slowed because of the complexity of the remaining cases.

Of the roughly 385 still incarcerated, U.S. officials said they intend to eventually put 60 to 80 on trial and free the rest. But the judicial process has likewise moved at a glacial pace, largely because of constitutional legal challenges.

Only two people have been charged under a military tribunal system approved by Congress last year. One of those cases has been adjudicated. David M. Hicks, an Australian citizen, pleaded guilty in March to lending material support to terrorists. He was sentenced to nine months in prison and is scheduled to be transferred to Australia in May to serve his time there.

Defense lawyers for some of the 82 cleared prisoners whose release is pending said Hicks received a better deal than did their clients who were not charged with any offenses. "One of the cruel ironies is that in Guantanamo, you've got to plead guilty to be released," said Wizner, the ACLU attorney. "It's the only way out of there."

Complicating the return process is that virtually all the prisoners at Guantanamo come from countries that the State Department has cited for records of human rights abuses. Under U.S. rules, a pattern of abuses in a country does not automatically preclude deportation there. Rather, U.S. officials must investigate each case to determine whether an individual is likely to face persecution.

The investigations are time-consuming and often meet with resistance from the prisoners' home countries, which can be sensitive to suggestions that they allow torture, U.S. officials said. In cases where there is a risk of mistreatment, U.S. policy is to obtain a written promise from the host government that the prisoner will not be abused and that U.S. officials will be allowed to monitor the arrangement.

"It often takes us months and months, or even years, to negotiate the human rights assurances that we are comfortable with before we will transfer someone to another country," said Bellinger, the State Department's legal adviser.

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