The Portugal Initiative

According to reports from, among others, the BBC, Washington Post, and NY Times, US officials may be close to striking a deal with Portugal to accept released Guantanamo detainees. These men, approximately 50-60 in number, are those who have been judged by the Annual Review Board process to be no longer a threat to the US or to possess intelligence information. As Portuguese legal advisor Luís Serradas Tavares made clear, “The U.S. has assured us that these people are the least dangerous people.”

That is the rub.

With approximately 80 detainees in the queue for trial by Military Commission process, release of these men still means that more than 125 will remain in a status judged too dangerous to release; insufficient evidence to try.

Why is that? Two reasons, primarily. Many of these detainees were battlefield captures, under conditions where establishment of sufficiently thorough crime scene investigation is impossible. Others have enough evidence against them for trial, but since that evidence is based on highly classified sources that might be compromised by open disclosure, the government is reluctant to release it. Or they make be dangerous men who did not necessarily commit war crimes but are eager to return to the fight.

All in all, their presence constitutes the most difficult problem for the incoming Obama team. Outright release means dangerous men are again on the loose. Transfer to countries of origin, such as Yemen and Saudi Arabia, in all probability means release, escape, or minimal imprisonment, and ultimate return to the fight.

The issue of indefinite detention without trial has plagued the Bush administration and will carry over to the Obama administration. While glib Obama legal advisors such as Lawrence Tribe speak of entirely new judicial procedures to be formulated to deal with these men, such will take a long time to formulate, be highly controversial, and may ultimately persuade lawmakers and Executive Branch officials that retention of Guantanamo as a holding facility may, in fact, be the least worse alternative.

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