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In all, the list identifies 34 candidates for prosecution. Army Brig. Gen. Mark Martins, the Pentagon’s chief war crimes prosecutor, said Sunday night that fewer than those 34 men will be prosecuted because of federal court rulings that disqualified “providing material support for terror” as a war crime in most if not all Guantánamo cases.
At Human Rights Watch, senior counterterrorism counsel Andrea Prasow called the list “a fascinating window into the Obama administration’s thinking circa January 2010” but both flawed and somewhat irrelevant today.
“Many of the detainees designated for prosecution can only be prosecuted in civilian court,” she said. “So unless Congress lifts the restrictions banning their transfer they are effectively ‘indefinite detainees.’ ”
She also noted that, since the list was drawn up, the Obama administration was reportedly considering transferring five Afghan Taliban to custody of the Qatari government in exchange for the release of U.S. POW Bowe Bergdahl.
The Wall Street Journal named the five men and all appear on the list released Monday as indefinite detainees: Mullah Mohammad Fazl, Mullah Norullah Noori, Mohammed Nabi, Khairullah Khairkhwa, and Abdul Haq Wasiq.
One man categorized in 2010 as a possible candidate for prosecution was Saudi Arabian Mohammed Qahtani, 37, once suspected of being the absent “20th hijacker” in the Sept. 11 plot. He was so brutally interrogated at Guantánamo that a senior Pentagon official excluded him from the Bush-era 9/11 war crimes charge sheet. That official, Susan Crawford, told The Washington Post’s Bob Woodward that Qahtani’s treatment amounted to torture.
The Miami Herald’s Carol Rosenberg, with the assistance of the Media Freedom and Information Access Clinic at the Yale Law School, filed suit in federal court in Washington D.C., in March for the list under the Freedom of Information Act. The students, in collaboration with Washington attorney Jay Brown, represented Rosenberg in a lawsuit that specifically sought the names of the 46 surviving prisoners.
Monday, hours before the release of the names, U.S. District Court Judge Gladys Kessler had set a July 8 deadline for the government to update the court on its classification review. The Justice Department gave the list to Brown, who in turn gave it to Rosenberg.
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