The Return Of The Fifth Category.

Marc Ambinder points to this Washington Post article that appears to describe exactly how many detainees at Guantanamo Bay fall into the so-called fifth category, those detainees who are "too dangerous to let go" but against whom we have scant evidence to prosecute:

Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions. About 90 others have been cleared for repatriation or resettlement in a third country, and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

Shortly after the Mohammed Jawad verdict, his defense attorney, David Frakt, suggested to me that the administration might change its mind about the fact that this category existed at all. David Kris, head of the Department of Justice's National Security Division told Congress in July that half the Gitmo cases had been reviewed and none had been put in the fifth category. White House counterterrorism official John Brennan suggested that these detainees might simply be transferred to other countries. It wasn't clear until now that the fifth category still existed at all -- but it appears it does.

I gave some background on how this group of detainees came to exist in my feature on Jawad: Basically, the Bush administration dispensed entirely with gathering useable evidence on terrorist suspects, instead relying on intelligence information that is often nebulous and inconclusive by legal standards. At the time, the Bush administration felt it was better safe than sorry, and the Obama administration got stuck with the sorry.

Spencer Ackerman speculates that these detainees might be sent to Bagram. That was the Bush administration's solution for avoiding judicial scrutiny of detention, but that approach is distinct from what Ken Gude and the Center for American Progress are proposing. The CAP proposal is to send those detainees who were captured in the Afghanistan-Pakistan area, and who have lost the first round of their habeas appeals, back to Bagram. Sending "fifth category" detainees captured in third countries would jeopardize the government's position in appealing the judicial ruling that granted detainees captured in third countries and held at Bagram habeas rights.

I spoke to Matthew Waxman, former deputy assistant secretary of defense for detainee affairs under the Bush administration for the story I wrote on CAP's report last week, and he explained to me (in a quote that didn't make it into the final piece) why that wouldn't be a good idea.

"To defend against claims that habeas rights should also apply at Bagram, the administration needs to highlight the differences between the two sites, such as security issues, practical challenges of detention operations, the degree of U.S. control," Waxman said. "If the government starts simply swapping detainees among the facilities, it hurts its case that for all these reasons Bagram should be treated differently as a legal matter."

So Bagram is not a solution. Neither, in my mind, is preventive detention outside of an ongoing theater of military combat.

-- A. Serwer