Of the other 80 detainees at Guantanamo, the administration has designated 46 for indefinite detention. They were put in this category because an interagency task force deemed them too dangerous to release and yet the administration either did not have sufficient admissible evidence against them to prosecute or concluded that their acts did not amount to a chargeable crime.
Obama signed an executive order on March 7, 2011, providing these detainees the ability to challenge this designation. But the panel before which they would appear, called a Periodic Review Board (PRB), has yet to even be formed -- even though an executive order mandated that it begin reviews within the year. And while 31 prisoners have been slated for prosecution, only six of those -- including the five defendants accused in the attacks of September 11, 2001, face any formal charges. The remaining three men at Guantanamo are serving sentences following convictions in military commission proceedings.
The administration should either prosecute these 80 detainees against whom they have any credible evidence -- and in courts that comport with fair trial standards -- or release them. Though starting the PRB process would provide detainees in the indefinite detention category with at least some ability to challenge their designation, if these individuals cannot be prosecuted, they should be released.
Even though they have been revised three times since first formed in 2005, and improved under Obama's presidency, it's clear that military commissions at Guantanamo do not comport with fair trial standards. Among other things, they lack judicial independence, allow the admission of certain coerced testimony, and fail to protect privileged attorney-client communications. In February, defense attorneys in one of the only two cases currently being prosecuted at Guantanamo discovered listening devices disguised as smoke detectors in attorney-client meeting rooms. Additionally, proceedings were halted because a courtroom feed to the media and observers that supposedly only the judge was able to control was cut off by an unnamed U.S. agency. Then in mid-April, hearings were further delayed by two months because an enormous number of prosecution and defense files disappeared from the server that both legal teams are required to use to process the highly classified documents in the case. Furthermore, it's not entirely clear why even the court's supporters would be so in favor of continuing the status quo -- the only two military commission verdicts obtained by full trials were recently overturned on appeal. In those cases, the appellate court found that the charges of conspiracy and material support for terrorism, for which the defendants were accused, were not war crimes and hence not within the jurisdiction of the commissions.
Current congressional restrictions prohibit the use of funds to transfer detainees to the United States, so Obama is correct when he said that he'll need to re-engage with Congress to lift these unreasonable restrictions. While federal courts are not perfect, they provide much greater procedural protections than the military commissions; and, with 200 years of jurisprudence behind them, their verdicts are far more certain to withstand appeal.
Obama's pledge to "get back at it" on closing Guantanamo is welcome, but he can't get away with words alone, or with shifting the blame to Congress. There are steps he can take now to begin ending the unlawful practice of indefinite detention without trial and to transfer those prisoners who are already slated to be sent home. As the president himself said, Guantanamo "hurts us in terms of our international standing" and "lessens cooperation with our allies on counterterrorism efforts." If these are words he truly believes, then he should exercise the authority he has to transfer some detainees now, and begin working with Congress to address the rest.