As many as 100 detainees at the prison at Guantánamo Bay, Cuba, could end up held without trial on American soil, Defense Secretary Robert M. Gates suggested Thursday, a situation that he acknowledged would create widespread if not unanimous opposition in Congress.
The estimate was the most specific yet from the Obama administration about how many of the 241 prisoners at Guantánamo could not be safely released, sent to other countries or appropriately tried in American courts. In January, President Obama ordered the prison closed by the end of the year, but his administration is still trying to decide what to do with the detainees.
Mr. Gates said discussions had started this week with the Justice Department about determining how many of the Guantánamo detainees could not be sent to other countries or tried in courts. He did not say which detainees might be in that group, but independent experts have said it probably would include terrorism suspects whom the military has not yet brought charges against, among them detainees from Yemen and the Qaeda figure Abu Zubaydah, who was subjected to brutal interrogation in secret prisons run by the Central Intelligence Agency.
“What do we do with the 50 to 100 — probably in that ballpark — who we cannot release and cannot try?” Mr. Gates said in a hearing before the Senate Appropriations Committee.
He did not say whether the detainees would be imprisoned temporarily or indefinitely or under what law they would be held. The Obama administration is debating how to establish a legal basis for incarcerating detainees deemed too dangerous to be released but not appropriate to be tried because of potential problems posed by their harsh interrogations, the evidence against them or other issues.
'No joking matter'
Some Republicans have become increasingly vocal in asserting that the administration has not come up with a viable alternative to the Guantánamo prison at the American naval base in Cuba.
“The question of where the terrorists at Guantánamo will be sent is no joking matter,” Senator Mitch McConnell of Kentucky, the Republican leader, said in a statement on Thursday. “The administration needs to tell the American people how it will keep the terrorists at Guantánamo out of our neighborhoods and off of the battlefield.”
At the hearing, Mr. Gates said he had asked for $50 million in supplemental financing in case a facility needed to be built quickly for the detainees. He did not specify what kind of facility or where it might be, but he acknowledged that it would be unpopular in most places.
“I fully expect to have 535 pieces of legislation before this is over saying ‘not in my district, not in my state,’ ” Mr. Gates said. “We’ll just have to deal with that when the time comes.”
On Wednesday in Berlin, Attorney General Eric H. Holder Jr. said the legal basis for holding any detainees was still under review.
“We have to determine what would be our basis for holding that person that would to the world appear to be fair and that would in fact be fair,” he said. “How could you ensure that due process was being served by the detention of such a person?”
Mr. Holder added that the questions were “difficult ones, but they’re not unanswerable,” and that the solutions should be “as broadly accepted as we possibly can make them.”
Members of Congress were already pleading with Mr. Gates on Thursday not to send the detainees to their states. “Please not at Leavenworth,” said Senator Sam Brownback, Republican of Kansas. “This is a hot topic in my state.”
International law of warfare?
Mr. Obama’s aides have long said the most difficult problem in closing Guantánamo was figuring out what to do with the group of detainees who cannot be released or tried.
A debate persists among national security and legal scholars about whether such a group could be held under the international law of warfare, which allows governments to hold enemy fighters until the end of a conflict, or whether the administration should ask Congress to enact a law that would allow what legal experts call preventive detention.
The Pentagon press secretary, Geoff Morrell, said Mr. Gates’s request for $50 million was a just-in-case budget entry should something have to be done with the group this fiscal year.
“If it were determined that we need to house any number of these detainees stateside,” Mr. Morrell said, “there would have to be at the very least adjustments made to existing military facilities.”
Elisabeth Bumiller reported from Washington, and William Glaberson from New York.
This story, "Hints That Detainees May Be Held on U.S. Soil", originally appeared in The New York Times.