President Obama directly acknowledged for the first time Wednesday that the prison facility at Guantanamo Bay will not close by the January deadline he set, but he said he hoped to still achieve that goal sometime next year.

Obama refused, however, to set a new deadline.

In an interview in the Chinese capital with Major Garrett of Fox News, Obama said he was “not disappointed” that the Guantanamo deadline had slipped, saying he “knew this was going to be hard.”

“People, I think understandably, are fearful after a lot of years where they were told that Guantanamo was critical to keep terrorists out,” Obama said. Closing the facility, he added, is “also just technically hard.”

As Marc Ambinder and Spencer point out, one of the questions that remains is what the administration plans to do with the dozens of detainees it deems too dangerous to release, but who “cannot be prosecuted because of evidentiary issues and limits on the use of classified material.”

This post has been updated.

Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions. About 90 others have been cleared for repatriation or resettlement in a third country, and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

My emphasis. As Marc writes, that sounds a lot like the administration will just simply hold them in legal limbo, as per the so-called “Fifth Category” of detentions outlined by President Obama in his May speech at the National Archives. Adam Serwer wrote a great piece on how that category of detainees has roiled the civil liberties community.

Now, the Obama administration has subsequently stated that it’s not going to seek any additional authority from Congress for such preventive detention. But that doesn’t solve the problem of what becomes of those detainees. Will the courts ultimately decide that the administration doesn’t, in fact, have the power to hold them without charge? And where will they be held if Guantanamo is to close? After all, if they’re moved into the United States, the courts will almost certainly exercise jurisdiction over them.

A possible clue comes in a recent and widely discussed report from Ken Gude of the well-connected Center for American Progress. As my colleague Daphne Eviatar reported, Gude proposed simply sending the detainees to Bagram Air Field in Afghanistan — which would, in effect, create Neo-Guantanamo. There has been a lot of discussion over whether Gude was floating a trial balloon for the administration. We may soon see.

Update: Adam corrects me on what Gude was actually proposing:

Spencer Ackerman speculates that these detainees might be sent to Bagram. That was the Bush administration’s solution for avoiding judicial scrutiny of detention, but that approach is distinct from what Ken Gude and the Center for American Progress are proposing. The CAP proposal is to send those detainees who were captured in the Afghanistan-Pakistan area, and who have lost the first round of their habeas appeals, back to Bagram. Sending “fifth category” detainees captured in third countries would jeopardize the government’s position in appealing the judicial ruling that granted detainees captured in third countries and held at Bagram habeas rights.

Apologies to Ken; I appreciate the correction.

Yesterday, Jonathan Hafetz, the American Civil Liberties Union lawyer who represented Al-Marri in his challenge to military detention, told The New York Times that the sentence by a federal judge was “a powerful reminder that America’s civilian courts can deliver justice even in the most challenging circumstances.” But David Rivkin, a former Reagan-era Justice Department official and strong supporter of military commissions to try suspected terrorists had a different take. Criminal courts are “ill-suited” to terror cases because the sentences are “a crap-shoot,” he said, adding that military commissions “arrive at a better judgment, being comprised of warriors, as to what level of danger the person poses.”

Al-Marri, a legal U.S. resident living in Peoria, Ill., before his arrest in late 2001, spent almost six years in a U.S. Navy brig in South Carolina without charge, mostly in isolation. Shortly before his case questioning the legality of his indefinite detention on U.S. soil was set to reach the Supreme Court,  the Obama administration transferred him to civilian custody, incarcerated him in a federal prison and prepared for his trial in federal court. But prosecutors agreed to accept a plea bargain, in which Al-Marri admitted that he’d been ordered by al-Qaeda official Khalid Shaikh Mohammed to move to the United States from his native Qatar and await instructions. Al-Marri moved his wife and five children to Peoria and he enrolled at Bradley University, where he had studied earlier. He admitted in his plea that he “researched online information related to various cyanide compounds” and communicated with other al-Qaeda operatives.

When al-Marri was arrested in December 2001 on charges of financial fraud, he hadn’t carried out any terrorist acts. But 18 months after his arrest, the government dropped the criminal charges and named al-Marri an “enemy combatant,” which in the Bush administration’s view, gave the government the right to hold him indefinitely in military custody. He remained at the Navy big, without charge or trial, until February.

Whether it’s legal for the United States to imprison indefinitely a lawful U.S. resident in a military prison on U.S. soil remains an open question, largely because the Obama administration did not give the Supreme Court an opportunity to rule on it. That may have been a strategic move designed to leave open the possibility of using that power again, particularly since President Obama promised to close the Guantanamo Bay prison by January 2010, but hasn’t yet decided what to do with many of the detainees imprisoned there.

For Al-Marri, however, it means he will now serve another eight years in prison. (He faced up to 15 years, but the judge agreed to consider the time he’d already served.) Al-Marri yesterday tearfully apologized for helping al-Qaeda and said he no longer wants to harm the American people.

Notwithstanding Rivkin’s criticism of the federal court’s sentence, it’s worth noting that in the two contested cases where terror suspects were sentenced by military commissions for similarly assisting al-Qaeda, both received lighter sentences. Salim Hamdan, for example, Osama bin Laden’s driver, was sentenced by a military jury of “warriors” to just five and a half years in prison, and given credit for time served. He’s already back home in Yemen. In the other case, Australian David Hicks pleaded guilty to providing material support for terrorism and was sentenced to only nine months in prison. A former kangaroo-skinner, Hicks is now home.

Still, as is often the case, that’s not necessarily the end of the story. Carol Rosenberg at The Miami Herald reports that the defense department’s military commissions could still try Al Rabiah for war crimes, as it planned to do during the Bush administration. The Pentagon claimed Al Rabiah ran a supply depot for al Qaeda fighters during the Battle of Tora Bora in Afghanistan. Al Rabiah’s lawyers argued in federal court that it was a case of mistaken identity; the man who’d actually supplied al Qaeda was killed by American air strikes.

Although Judge Kollar-Kotelly didn’t rule definitively on whether Al Rabiah was the man U.S. forces had intended to capture, she did rule unequivocally against the Justice Department, finding that the U.S. government has no right to keep Al Rabiah, imprisoned at Guantanamo since 2002, any longer. As she put it in her opinion: “If there exists a basis for Al Rabiah’s indefinite detention, it most certainly has not been presented to this Court.”

That won’t necessarily stop the military from charging him with war crimes, however. A military commissions spokesman told The Miami Herald that there’s still an active case pending against Al Rabiah at the commission. It’s been suspended until November, awaiting White House review.

The Obama administration said on Wednesday that it will not seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at Guantanamo Bay. While that still upsets many civil libertarians who say the United States never ought to detain anyone indefinitely without charge, it’s at least better than the alternative, which some worried would have been broad new legislation that could have expanded U.S. detention authority beyond what it claims it has now.

Since Sept. 11 terrorist attacks,  the United States has claimed it has the authority to indefinitely detain fighters in the “war on terror” according to the laws of war. Critics counter that the fight against terrorism isn’t a “war” that allows the United States to take prisoners, and of course when it came time to granting detainees prisoners-of-war status, the Bush administration adamantly refused.

When President Obama said in his speech at the National Archives in June that he still believes there’s a category of people at Guantanamo who can’t be tried in criminal court or by military commission but are too dangerous to release, he sparked a vigorous debate about just what kind of “preventive detention” scheme the president can or should embrace.

The American Civil Liberties Union, among others, insisted that any sort of “indefinite detention,” whether by legislation or executive order, would simply be extending the unconstitutional Bush policy that Obama criticized before he took office. But some lawyers, worried that taking a hard line would lead to the adoption of a broad new detention policy that would extend beyond the detainees at Guantanamo, urged the administration to stick to the detention authorization that it already has under the laws of war.

That camp apparently won the battle.  On Wednesday, the administration said it will continue to hold the Guantanamo detainees without charge or trial based on the power it claims pursuant to the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against al-Qaeda and the Taliban.

On Thursday, the ACLU registered its disappointment.

“While the Obama administration is wise not to seek legislation or issue an executive order that would formalize an unconstitutional system of indefinite detention, it remains deeply troubling that the administration continues to maintain a de facto system in which detainees are held indefinitely without charge or trial,” said Anthony Romero, Executive Director of the ACLU, in a statement.

“Locking people up indefinitely without charge or trial violates our most fundamental laws and values. … It is important to keep in mind that even with today’s development, what we are left with is a continuation of the misguided detention policy of the Bush administration.”

Lawyers have been making that argument for years now, but the United States has insisted that the prisoners at Bagram have no right to challenge their detention in a U.S. court. The Obama administration recently appealed a federal court’s ruling that some of the prisoners do indeed have that right.

Now, notwithstanding any constitutional concerns, Maj. Gen. Doug Stone is reportedly recommending that the United States completely revamp its detention policy in Afghanistan, focusing on rehabilitating rather than simply imprisoning the detainees. He also acknowledges that the vast majority of the men held at Bagram were likely swept up in raids yet had not engaged in hostilities against the United States.

As I’ve written before, many of the prisoners at Bagram have been held there for six or seven years without charge or access to lawyers. Stone worries that imprisoning them without charge or an ability to defend themselves for years will turn them into hardened anti-American radicals.

Stone’s 700-page report is not yet available, but he has reportedly briefed senior U.S. officials on his findings, including the top commander in Afghanistan, Gen. Stanley McChrystal; Ambassador Richard Holbrooke, special envoy for Afghanistan and Pakistan; and Secretary of State Hillary Rodham Clinton. Stone earlier helped revamp the prison system in Iraq.

McChrystal is expected to address the issue of detention facilities in an assessment of Afghanistan due within the next few weeks.

That may be true, but there’s an aspect of one of Brennan’s recent speeches that, if actually implemented, would have the opposite effect.

As Spencer Ackerman reported here earlier, Brennan, in his speech to the Center for Strategic and International Studies, declared an end to the “war on terror.”

“This is not a ‘war on terror,’” Brennan said. “We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world.”

Well, if that’s the case, then how is the Obama administration going to justify “preventive detention” of terror suspects under the laws of war?

That power to detain supposedly “dangerous” people who can’t be proven guilty in any sort of court is a power the Bush administration relied on heavily and the Obama administration continues to claim. It’s at the core of President Obama’s claim that there’s a class of people who cannot be tried in criminal court or even by military commission, yet still must be held in prison because they’re “dangerous.”  That’s all been justified legally by saying that we’re at “war,” and terror suspects are warriors in the “war on terror.”

Now that the Brennan has declared an end to that war, is the Obama administration willing to relinquish its right to detain terror suspects picked up anywhere in the world?

So far, Obama has not made clear how he intends to use this “preventive detention” authority he claims that he has, though it’s as broad a detention authority as Bush Attorney General Michael Mukasey claimed over a year ago. But if Brennan really has the sway over the administration that Wheeler suggests he does, then maybe Obama will soon have to concede that the “war on terror” is over — and so is his corresponding power to seize and imprison its supposed “warriors” anywhere in the world.

“I think it’s encouraging that they’re moving ahead despite the opposition,” said David Remes, Executive Director of Appeal for Justice, who represents more than a dozen detainees from Yemen imprisoned at Guantanamo.  Opponents “have unfortunately resurrected the idea that the guys down there are ‘the worst of the worst,’ and so dangerous that one has to consider whether even maximum-security facilities are able to hold them.”

Moving the prisoners will at least make visiting them easier. “We won’t have to take a commercial flight to Fort Lauderdale and then a puddle-jumper to Guantanamo, or submit to the restrictions of a military base,” he said. Federal officials can still place strict limitations on lawyers representing terror suspects in the United States, though, including preventing them from talking to the media about the evidence in their cases.

“On the other hand, what appears to be happening is that Obama’s efforts to release the men who ought to be released is being stymied by political opposition,” Remes said. “And it will be deeply unfortunate if he ends up moving Gitmo from Cuba to Michigan.” Many of the men should be released, Remes insisted. “And by eliminating the symbol of Guantanamo, there’s a danger that the focus on the plight of these men will disappear.”

Candace Gorman, a Chicago-based lawyer who represents two prisoners at Guantanamo, shares that concern.

“We have not asked for Guantanamo to be closed so that the men could be moved to different prisons,” she said. “Some of these men, including my two clients, have been held for more than seven years without charges. It is time to either charge the men or release them … moving them to a different location does not solve the problem.”

US Attorney General Michael Mukasey (WDCPix)

It’s been exactly one year since then-Attorney General Michael Mukasey proposed in a speech at the American Enterprise Institute that Congress pass legislation declaring a new, expanded war with al-Qaeda and the Taliban — thereby granting the president the authority to detain indefinitely members of those groups anywhere in the world where they’re found.

That proposal from a lame-duck Attorney General never got very far with the Democratic-controlled Congress. But a year later, the country is still debating that exact same detention authority. And news reports suggest that President Obama may seek precisely the same sort of authority that Mukasey was talking about.

Illustration by: Matt Mahurin

Although the Detainee Policy Task Force yesterday announced it was taking a six-month extension on its deadline to formulate the policy, reports from National Public Radio, The Washington Post and Politico have all quoted anonymous Obama administration officials saying the president intends to create or continue some sort of indefinite detention system for suspected terrorists associated with al-Qaeda or the Taliban, whether through new legislation or mere “consultation” with Congress.

“There is no intent in the administration to rely on anything other than congressional authority,” one senior administration official reportedly told The Washington Post.

Whether that authority would take the form of an entirely new system of administrative detention outside the authority of the laws of war, as some have proposed, or whether it would rely either on the existing Authorization for the Use of Military Force, or seek a new authorization, is unclear.  The anonymous officials aren’t explaining (or don’t yet know) how the administration intends to go about solidifying its legal authority to indefinitely detain suspects without charge or trial arrested around the world.

The question arises because the Supreme Court, in Hamdi v. Rumsfeld, affirmed that the president does have authority to detain combatants arrested on the battlefield in a conventional war, which the United States was engaged in with Afghanistan at the time. Since then, lower federal courts have ruled that the United States can detain combatants who are members of al-Qaeda or the Taliban. But it’s not clear if that authority would reach countries where there is no active combat — or if the authority described in the Hamdi decision  at some point runs out.

In attempting to answer that question a year ago today, Michael Mukasey, in a speech delivered to the American Enterprise Institute, said that Congress should:

acknowledge again and explicitly that this Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans—soldiers and civilians alike. In order for us to prevail in that conflict, Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda, the Taliban, and associated organizations.

Today, Obama — or at least members of his administration — appear to want something very similar.

“It’s hard to see how they would end up writing anything much different from what Mukasey proposed a year ago,” said Chris Anders, senior legislative counsel for the American Civil Liberties Union in Washington. “And that was dead on arrival.” Although the issue was raised at congressional hearings, proposed legislation never received enough support even to get to the floor for a vote.

Last summer, Anders described the idea on the ACLU’s blog as “a multi-part plan to violate the Constitution” that would “give a president worldwide power to declare anyone a terrorist and hold the person forever – without ever charging anyone with a crime.”

Although it’s possible that Obama would have more sway with Congress than Bush did, the leaders of the judiciary committees in both the House and Senate have publicly opposed a preventive detention plan that would detain suspected terrorists that the president deems “dangerous” without charge or trial; the chairmen of the House and Senate Armed Services Committees have likewise expressed reluctance.

So could Obama really get new authorization for preventive detention? Or will he try to rely on the old one, and issue an executive order or presidential memorandum clarifying (or extending) its scope? One reason he might want to seek new authorization is that, as David Kris, assistant attorney general for the Justice Department’s National Security Division,  recently testified before the Senate Armed Services Committee, the authority the Supreme Court acknowledged in Hamdi could eventually “run out.” After all, the laws of war only authorize detention for the duration of active hostilities.

Anders said that in his conversations with lawmakers on the Hill, he hasn’t heard of any proposed legislation being circulated. “No one I’ve come across so far has seen or heard anything from the administration about an indefinite detention proposal,” he said.

In an e-mail, Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, cautioned that new legislation could lead to far broader authority for indefinite detention than even Obama envisions.

“For me, the answer to this question decides the whole ball game — if they go to Congress, what will inevitably emerge is a broad preventive detention system regardless of what the Obama administration wants. If they rely on AUMF authority, then it can be much more narrow.”

All of this comes on the heels of a district court judge’s ruling at the end of June dismissing a habeas corpus petition by a Bagram prisoner on the grounds that the U.S. government has deemed the prisoners “enemy combatants” and Congress in the Military Commissions Act stripped federal courts of jurisdiction over their cases. In other words, they have no right to federal court review. (The Supreme Court has held that prisoners at Guantanamo Bay have the right to habeas corpus review, but has never addressed the situation of prisoners at Bagram.)

A district court had previously ruled that Bagram prisoners captured outside of Afghanistan do have habeas rights, but the Obama administration has appealed that ruling.

The new Defense Department review of the matter, reported in The New York Times today, appears to be focused not particularly on the rights of Bagram prisoners, though, but on growing worries that abuses in the Afghan prison system — to which the U.S. military transfers many Bagram prisoners — is helping the Taliban recruit new militants.

According to the Times, while the conditions at Bagram have improved since 2002, when at least two inmates died from severe beatings and abusive interrogations in U.S. custody, “conditions worsened in the larger Afghan-run prison network, which houses more than 15,000 detainees at three dozen overcrowded and often violent sites.”

The country’s justice system provides little in the way of due process for those prisoners, either. “Trials” for prisoners, often held at the prisons, involve the presentation of little or no evidence and little opportunity for the prisoners to defend themselves. The U.S. government is reportedly planning to build new courthouses in Afghanistan, but those plans aren’t very far along.

Human Rights First, which has done some of the most extensive work on the Bagram prison and the justice system in Afghanistan, is expected to release a new report on the problems there this week.