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Who Are the Guantanamo Prisoners Not Being Prosecuted But Who the Obama Administration Refuses to Release?

A journalist for the Miami Herald, who has been diligently covering Guantanamo Bay prison and those being held there in detention, has filed a Freedom of Information Act (FOIA) lawsuit seeking the names of prisoners who are not being prosecuted yet have not been cleared for release.

Carol Rosenberg submitted a FOIA request on December 31, 2012, for “records sufficient to disclose the names of all Guantanamo detainees whose Detainee Detention and Prosecution status is listed as ‘Continued Detention under the [Authorization for the Use of Military Force (AUMF)]” in the November 2012 Government Accountability Office (GAO) report.

According to the lawsuit filed on March 15, Rosenberg “stressed that these records were ‘time sensitive’ and were sought in order to produce a report on a ‘breaking story [that] has generated wide public interest.’ Moreover, Plaintiff stressed the importance of reporting on this matter quickly so that the public can engage with their newly-elected government on the underlying policy issues involved.” She requested expedited processing.

The Pentagon had twenty days to respond to her request under freedom of information law. Yet, between December 31 and February 5, the Pentagon failed to respond to her request and claimed no exemptions under FOIA to withhold the requested records. Rosenberg appealed and received the following response:

…Due to an extremely heavy FOIA workload, we are unable to complete your appeal within the statutory time requirement…When the appellate review of your case is complete, you will be notified by the appellate authority, the Deputy Director of Administration and Management, Office of the Secretary of Defense, of the final decision…

Under FOIA, a “determination with respect to any appeal” is to be made.

Rosenberg seeks, as a remedy, a declaration that the Pentagon violated FOIA. She also ask that the Pentagon be enjoined to expeditiously produce the records that were requested.

The lawsuit points out that the information being sought is not classified. It is known that under the AUMF 46 prisoners are being held in detention.

“On September 21, 2012, the names of 55 detainees later mentioned alongside the 46 AUMF detainees in the November GAO report were made public in a court filing that appeared n a case in the US Federal District Court for the District of Columbia, Boumediene v. Bush…suggesting that the names of the 46 AUMF detainees are also not classified,” the lawsuit asserts.

Obviously, since Congress passed the 2013 National Defense Authorization Act and President Barack Obama signed it into law and the State Department has shut down the office, which was resettling detainees, one could argue the Obama administration refuses to release all prisoners. The fact is there are 86 prisoners cleared for release. These 46 prisoners do not enjoy a status, where the government might begin to process them for resettlement if someone in government had the political courage to see to it prisoners were released.

Human Rights Watch reminded the United Nations Human Rights Council recently the prisoners have been designated for indefinite detention because they are considered to be “unsuitable for prosecution yet ‘too dangerous’ to release.” It added, “An executive order issued in March 2011 provided that these detainees should have the ability to challenge their designation, but two years later, the board before which they would appear has not yet been created.”

As such, these men have very little rights, if any, to due process. Many of them have now likely been in confinement for a decade. If the American public wants to understand why Guantanamo prisoners go on hunger strikes, this is likely part of why prisoners engage in resistance. (And so, too, is the reality that even those cleared for release are not getting out of the prison anytime soon.)

Inarguably, the public has an interest in knowing the names of the 46 prisoners. These are individuals Obama is claiming the executive power to keep indefinitely detained without charge or trial under the AUMF.

Credit is due to Rosenberg for trying to force this information out into the open, which more journalists in US media should be using their status and experience in the press to do.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."