"The signals the administration has sent suggest that it plans to continue holding some number of Guantanamo prisoners without charge, because the Bush administration's policies made them hard to prosecute, but that it does not intend to detain without charge suspected terrorists who may be captured in the future," said Malinowski.
Congress just recently passed legislation allowing the administration to bring onto U.S. soil those men that it plans to charge, but the legislation only dealt with those who were being criminally prosecuted.
"If the Congress continues to prohibit the transfer of detainees to U.S. soil for purposes other than prosecution, it will, ironically, leave the administration with little choice but to charge or release every prisoner in Guantanamo," said Malinowksi.
The administration has refused to break down the detainees by numbers. In July Navy Captain John Murphy told reporters in Guantanamo, according to press reports, that military prosecutors were ready to proceed with cases against 66 detainees. The looming question is how many detainees might indeed be left uncharged.
Says Waxman, "There are no good options here -- every option has major downsides. Simply moving detainees inside the U.S. without trial would open the Obama administration up to charges that it's merely transferred the Guantanamo problem inside our borders."
Legislation passed in September stipulates that the president shall inform Congress, in classified form, any plan regarding the disposition of a detainee. The plan presented to Congress needs to include a determination of risk that the individual might instigate an act of terrorism, the costs associated with the transfer and a notification to the governor of the state to which the individual will be transferred 14 days before the transfer.