TAPPER: Just to follow up on this, is it — is it legal to put people who the president might put in indefinite detention in any facility in the United States?
GIBBS: Well, I think, obviously, some of these issues are going to have to be worked out. Well, two things, obviously, decisions will have to be worked out with Congress about how, where, in what manner people might — might be detained in that way.
And I think you heard the president, secondly, say today that, certainly as it relates to preventive or administrative detention, you — you would want to — he would certainly want to do that through a legal mechanism, again, in working with — in conjunction with both Congress and the court system, to ensure that there’s a standard by which we’re doing that.
TAPPER: OK. The Pentagon has an internal document indicating that, of the 540 or so detainees released by the previous administration, 14 percent are jihadists. What lessons is the Obama administration learning from those apparent mistakes in release?
GIBBS: Well, I think, first and foremost, that we have to go through each and every case, that we have to go through each and every case, that we have to seek that swift and certain justice that the president has talked about, figure out if they’re making a determination about who these people are, the evidence that we have against them. Can we try them using the reformed military commissions? Can we try them, as the president said, in a federal court of law, as Mr. Gelani will be tried, and make some of the those individual determinations.
But I think, in many ways, Jake, the report, in many way proves the argument that we’ve tried to make over the past four months. And that is that Guantanamo Bay is an ad hoc patchwork of legal theories that isn’t working legally or organizationally. Because, let’s for a minute — let’s play this out for a second.
Dick Cheney said today that Guantanamo Bay has made us safer. Right? So let’s set aside, then, the argument that the Bush administration — based on that argument, I assume the Bush administration is arguing they didn’t knowingly release people that they thought would go back into — and join the battle in a different place. That leaves you, roughly, with two different scenarios.
Either, in reviewing who was there, you had, again, an ad hoc patchwork that organizationally and legally didn’t work. You determined that people weren’t a danger, and they were. Or they weren’t a danger and you released them, but because they had been mistakenly picked up, they became terrorists.
That’s our second point. I think the report very clearly demonstrates the argument that we’ve made that legally and organizationally the prison camp doesn’t work and that it’s become a powerful argument not for — not for our strength in the world but a rallying cry for those who have joined the battle.
TAPPER: Just a follow-up on this one: How do you respond to those who say the argument is actually the opposite? What this shows is you can’t release these individuals…
GIBBS: Well, but then I guess…
TAPPER: …especially these last 240 that have been the most difficult to deal with.
GIBBS: Well, I guess my question — it’s a better question for the vice president.
TAPPER: He’s not standing in front of me.
GIBBS: No, he’s not. But I understand he’s got some free time and doing some speaking. (LAUGHTER)
But one might ask, if the prison kept us safer, if what they were doing was protecting safety and security of the American people, how on earth did they make the determination that those people should be let free? I’d be interested in the answer.