So how many truly hardened terrorists are currently cooling their heels at Guantanamo? We know for a fact that the 245 detainees at the camp include 17 Chinese Uighurs who, while cleared of any "enemy combatant" charges, cannot be returned safely to China and have no place else to go. Similarly, there are, as the Bush administration acknowledges, between 50 and 60 other men who have also been cleared for release with no place to go. (Some of these folks may now be accepted by Portugal, Australia, and Switzerland.)
We also know that the single most important determinant of whether a prisoner was repatriated or kept at Guantanamo is their nationality. As the Center for Constitutional Rights reports, the men from European countries were released early while almost all of the Yemenis are still there. In fact, the "luckiest" of the Yemenis remains Osama Bin Laden's driver, Salim Hamdan, who was convicted in a military commission, served out his brief sentence, and is now home with his family. Whether or not a prisoner is still at Gitmo often turns as much on international diplomacy as on future dangerousness.
We also know that among the remaining prisoners at Guantanamo there are several who clearly come under the definition of child soldiers, including Canadian Omar Khadr, who allegedly threw a grenade at an American soldier and was first taken to Guantanamo when he was 15. Khadr, we learned this week, allegedly identified, under abusive interrogation, another Canadian, Maher Arar, as a visitor to an al-Qaida safe house in Afghanistan. The problem here is that there is no dispute that Arar was in Canada at the time. Mohammed Jawad is another prisoner at Gitmo, and like Khadr he was also a child soldier (between 15 and 17; his birth date is unknown) when he threw a grenade and injured U.S. soldiers. As Glenn Greenwald chronicles here, Jawad allegedly suffered such brutal abuse and torture, his chief prosecutor resigned and is now a witness for Jawad in his habeas corpus proceeding. As Greenwald writes, the centerpiece of the government case against Jawad is a confession he " 'signed' (with his fingerprint, since he can't write his name) … and yet, it was written in a language Jawad did not speak or read and was given to him after several days of beatings, druggings, and threats—all while he was likely 15 or 16 years old."
This brings us to the nearly unthinkable question of what happens to anyone, innocent or guilty, when they have been beaten, humiliated, and held in solitary confinement for almost seven years. One could argue that even Mother Theresa might be inclined to "rejoin the battlefield" upon release from such treatment. Somehow in the repatriation of those who arrived at Gitmo relative innocents, we must now contend with the fact that some will be dangerous as a consequence of our actions, not theirs.
But all of this is still the easy part. The tough part is what happens to those detainees who really do represent a threat to this country—people like Khalid Sheikh Mohammed, with whom the Obama administration will now have to contend. The civil rights community has split over this issue in recent months, with proponents of terror courts and long-term preventative detention doing battle with supporters of regular criminal trials. That is the issue we need to contend with today, and our discussions should be informed by fact, not by fiction or fabrication. One of the most thorough studies of the Guantanamo population was undertaken by my colleague Ben Wittes for his book Law and the Long War. He cautions that there are some extremely dangerous men at the camp and also some unfortunate cannon fodder. Looking at all of them as a unified bloc is and has always been an error. So whether we are looking to answer questions about where to repatriate the last Guantanamo detainees, where to hold them until we try them, or how to try them, let's attempt to get past the undifferentiated orange jumpsuits, which tell us what they have always told us: virtually nothing at all.