WASHINGTON - Stymied by Congress so far, the White House isconsidering issuing an executive order to indefinitely imprison asmall number of Guantanamo Bay detainees considered too dangerousto prosecute or release, two administration officials said Friday.
No final decisions have been made about the order, which wouldbe the fourth major mandate by President Barack Obama to deal withhow the United States treats and prosecutes terror suspects andforeign fighters.
One of the officials said the order, if issued, would not takeeffect until after the Oct. 1 start of the upcoming 2010 fiscalyear. Already, Congress has blocked the administration fromspending any money this year to imprison the detainees in theUnited States -- which in turn could slow or even halt Obama'spledge to close the Navy prison in Cuba by Jan. 21.
The administration also is considering asking Congress to passnew laws that would allow the indefinite detentions, the officialsaid.
Both of the officials spoke Friday on condition of anonymitybecause they were not authorized to discuss the still-tentativeissue publicly. The possibility of an executive order was firstreported by ProPublica and The Washington Post.
"A number of options are being considered," said one of theofficials.
Asked if the detainees would be indefinitely held overseas or inthe United States, the official said: "There's not really a lot ofoptions overseas."
Christopher Anders, senior legislative counsel for the AmericanCivil Liberties Union Washington office, says the organizationstrongly opposes any plans for indefinite detention of prisoners.
"We're saying it shouldn't be done at all," he said Friday.
Without legislative backing, an executive order is the onlyroute Obama has to get the needed authority.
In a statement Friday night, Senate Republican Leader MitchMcConnell cast doubt that Congress would approve funding fortransferring or imprisoning detainees in the U.S. without detailedplans on how it would work.
Lawmakers this month blocked $80 million the Obamaadministration had requested for transferring the detainees.Without the money, Obama's order can't be carried out.
"Bipartisan majorities of Congress and the American peopleoppose closing Guantanamo without a plan, and several importantquestions remain unanswered," McConnell said. He said Obamademanded the transfers "before the administration even has a placeto put the detainees who are housed there, any plan for militarycommissions, or any articulated plan for indefinite detention."
McConnell added: "The defense budget request for fiscal year2010 includes a similar funding request, so the Senate willconsider this matter again in the near future."
Obama's order also would only apply to current detainees atGuantanamo -- and not ones caught and held in futurecounterinsurgent battles.
There are 229 detainees currently being held at Guantanamo. Sofar, 11 are expected to be tried in military tribunals, and atleast one -- Ahmed Ghailani, a Tanzanian accused in two Americanembassy bombings a decade ago -- has been transferred to UnitedStates for prosecution by a civilian federal courts in Manhattan.
Still others, including four Chinese Muslims known as Uighurswho were transferred to Bermuda earlier this month, have been sentto foreign nations. The Obama administration is trying to relocateas many as 100 Yemeni detainees to Saudi Arabia for rehabilitation.
Obama said last month he was looking at continued imprisonmentfor a small number of Guantanamo detainees whom he described as toodangerous to release. He called it "the toughest issue we willface."
"I am not going to release individuals who endanger theAmerican people," Obama said during a May 21 speech at theNational Archives. "Al-Qaida terrorists and their affiliates areat war with the United States, and those that we capture -- likeother prisoners of war -- must be prevented from attacking usagain."
It's not clear how many detainees could fall into that category.Defense and Justice Department officials have privately said atleast some could be freed at trial because prosecutors would bereluctant to expose classified evidence against the detainees. Someof that evidence also might be thrown out because of how it wasobtained -- potentially by cruel, inhuman or degrading treatment.
A Pentagon task force is currently reviewing every case to seewhich are eligible for transfer or release; which could face trialin civilian U.S. courts; which are best suited to some version of amilitary commission; and which are believed too dangerous to free.
Underscoring the difficulty of where to send the detaineesbefore Guantanamo closes, a senior Defense official said somedetainees who were picked up as enemy combatants cannot be chargedwith war crimes or terrorism even though they are believed to posea threat. If no country volunteers to take them, traditional law ofwar authority allows the United States government to hold them tillthe end of hostilities, said the official, who also spoke oncondition of anonymity.
Civil rights advocates and constitutional scholars accused Obamaof parroting the detention policies they used to lambaste formerRepublican President George W. Bush.
"Prolonged imprisonment without trial is exactly the Guantanamosystem that the president promised to shut down," Shayana Kadidal,a senior attorney for the Center for Constitutional Rights, said ina statement Friday.
He added: "If the last eight years have taught us anything,it's that executive overreach, left to continue unchecked for manyyears, has a tendency to harden into precedent."