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Indefinite detention possible for suspects at Guantanamo Bay
An administration task force ultimately determined that at least 48 detainees were too dangerous to release but could not be put on trial. Officials have said the evidence against these detainees has been tainted by torture or cannot be used in court because it is classified or would not meet legal standards.
"When the review panel puts someone in the category of long-term detention, the 48 people, what happens then?" the administration official said. "Are they there for the rest of their lives? What's the review mechanism? How impartial is it? Do they have a chance to contest it? All of that stuff has to be answered. And we have been working on an executive order laying out these elements."
Those designated for prosecution but who are not charged could also have their cases reviewed under the proposed system in the executive order, the White House official said.
Detainees at Guantanamo would continue to have access to the federal courts to challenge their incarceration under the legal doctrine of habeas corpus. Officials said the plan would give detainees who have lost their habeas petition the prospect of one day ending their time in U.S. custody. And officials said the International Committee of the Red Cross has been urging the administration to create a review process.
Some civil liberties groups oppose any form of indefinite detention, even with a built-in mechanism to challenge incarceration.
"Indefinite detention without charge or trial is wrong, whether it comes from Congress or the president's pen," said Laura W. Murphy, director of the American Civil Liberties Union's Washington legislative office. "Our Constitution requires that we charge and prosecute people who are accused of crimes. You cannot sell an indefinite detention scheme by attaching a few due-process baubles and expect that to restore the rule of law." That is bad for America and is not the form of justice we want other nations to emulate."
The executive order, however, could be an effort to preempt legislation supported by some Republicans, which would create a system of indefinite detention not only for some Guantanamo detainees but also for future terrorism suspects seized overseas.
Malinowski said there is a "big difference" between using an executive order, which can be rescinded, to handle a select group of detainees that Obama inherited, and legislating a general indefinite detention scheme.
Staff researcher Julie Tate contributed to this report.