WASHINGTON — The Obama administration has begun the process of reviewing files of detainees held at Guantanamo Bay to determine who can be prosecuted and who can be transferred to other countries, officials said Friday, a crucial first step toward closing the prison.
The review, begun this week, is also key to a decision on whether the administration can turn the page completely on the Bush administration's detention policies.
"We think it essential that these files get looked at with a completely new eye by the new administration," said Devon Chaffee, advocacy counsel for Human Rights First.
But depending on the outcome of the review, the Obama administration may decide it has to retain some form of the controversial military commission system begun under President Bush.
Administration officials also could decide they must continue holding some prisoners without trials, relying on the same powers under the law of armed conflict that the Bush administration used to detain "enemy combatants."
Either of those moves would be controversial in the eyes of many human rights groups, who expected that Obama's executive order last month ordering Guantanamo closed would have essentially put an end to the military commission system and the practice of detention without trial.
"The Obama administration made great gains when it announced the plan to close Guantanamo," said Jennifer Daskal, senior counter-terrorism counsel for Human Rights Watch. "Many of those gains will be undercut if the administration is perceived as merely transferring the system of indefinite detention to U.S. soil."
Under the executive order, the review of each case will be led by Atty. Gen. Eric H. Holder Jr. and the Justice Department. The Defense Department, the Office of the Director of National Intelligence and other agencies will also take part.
The reviews will first compile the evidence the government has against individual detainees.
"The review team is in the process of identifying all the information," a senior administration official said on condition of anonymity because the review will not be public.
The process will not be simple. The executive order directs Holder to assemble the evidence to "the extent reasonably practicable."
But the senior official said there is not, and may never be, a single file for each detainee. And because evidence was collected by different agencies, or by different parts of the Defense Department, much of it remains classified and scattered in multiple locations.
Human rights groups said it was critical that the Justice Department lead the review, and they urged officials to take a close look at the intelligence reports being used to hold the detainees.
"It is clearly important that the administration not take for granted any of the assertions about any particular detainee," said Chaffee, the Human Rights First attorney. "The Bush administration's assertions about Guantanamo detainees have been wrong in the past."
Daskal, the Human Rights Watch official, said the review would need to look for creative ways to prosecute some detainees. Some critics of the Guantanamo prison have said that if the evidence of detainees' larger alleged misdeeds is too tainted to use in court, the government may have to charge them with lesser crimes, such as conspiracy or material support for terrorism.
"It very may well be the Department of Justice may have to adopt the Al Capone theory, where you get the guy on tax evasion," Daskal said.