How Many to Try

By Benjamin Wittes
Sunday, April 24, 2011, 10:04 AM

The most remarkable passage in the Washington Post story to which I linked earlier is this one, which highlights the remarkable naiveté with which the incoming Obama administration--including the President himself--approached the Guantanamo closure:

In late April, Obama heard some jarring news during a Situation Room meeting with the interagency task force reviewing the case of every detainee at Guantanamo.

The president asked Matthew G. Olsen, the Justice Department lawyer heading the task force, approximately how many Guantanamo detainees could be prosecuted, according to administration officials.

Probably fewer than 20, Olsen said.

The president seemed peeved that the number was so small, in contrast with the optimistic predictions during his election campaign that nearly all of the remaining detainees could face trial or be transferred. The number would eventually rise to 36, but even that low figure came as a shock to Obama aides who had been counting on a cleaner sweep.

White House officials were in such disbelief that they asked Justice Department participants to write up a memo explaining exactly why they couldn’t bring more of the men to trial. In many cases, the intelligence gathered on the men was not court-worthy evidence.

For years, officials in the Bush administration, even those who were most sympathetic to bringing people to trial, had been stressing that the number of possible cases was limited. The most optimistic scenario for military commission trials never involved more than 75 or 80 detainees, and that was when the number of detainees altogether was many hundreds higher than the diminished population which President Obama inherited. The warnings that a clean sweep was not possible were not coming from the David Addingtons of the world. They were coming from people like John Bellinger III, who had been cautioning for years--literally, for years--that severe jurisdictional limitations would prevent trial of many Guantanamo detainees, and that evidentiary problems would prevent trial of many others. This information was very available to anyone who didn't put ideological blinders on and ignore it. The only way to have been surprised by Olsen's findings was to have willfully ignored clear warning signs.