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Referred for Prosecution But Never Tried: The (Latest) Guantánamo Math Problem

Steve Vladeck
Thursday, April 23, 2015, 11:47 AM
Everyone should read Bobby's post from last night on the potential approach of an endgame for the 122 detainees still in custody at Guantánamo.

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Everyone should read Bobby's post from last night on the potential approach of an endgame for the 122 detainees still in custody at Guantánamo. As Bobby points out, even if the government (miraculously) is able to transfer the 57 detainees cleared for transfer, that still leaves two categories of detainees in need of a solution: those the government claims are "too dangerous" to transfer but can't be tried (but see Jen Daskal's excellent post), and those who are slated for / already in military commission proceedings. 65 of the 122 men still at Guantánamo fall into these categories. Here's the math problem: We've known for some time that the group of detainees who fall into the government's "too dangerous" category includes 33 men (a number that goes down with each clearance of a detainee by a Periodic Review Board). And we learned recently that the government envisions military commission proceedings for at most seven of the remaining detainees--on top of the 10 detainees whose military commission proceedings are ongoing or have run their course. Of course, many of the pending (and, possibly, future) military commission trials are vulnerable to serious constitutional (and other legal) challenges. But even assuming, for the sake of argument, that the courts uphold the authority of the commissions to try all of these cases (I'd bet more money on the Mets winning the World Series), that leaves at least 15 detainees who have historically been "referred for prosecution," whose military commission trial has apparently been foreclosed by the U.S. government, and who therefore must either fall into the group of detainees who are cleared for transfer (complicating the diplomatic intrigue to which Bobby alluded), or who are not (which would increase by nearly 50% the size of the group that would be left even if the government is able to transfer everyone else--and perhaps more, if some of these commission cases are ultimately thrown out). Thus, as we continue to discuss the practical, political, and legal obstacles to closing Guantánamo, it sure would be helpful to know into which of the two non-military commission categories these 15-plus detainees fall...

Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.

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