I’m not surprised that the Department of Justice reached the same conclusion as the Bush administration on how to deal with unlawful combatants in a time of war.  I’m just surprised that they publicly admitted it:

A Justice Department-led task force has concluded that nearly 50 of the 196 detainees at the U.S. military prison at Guantanamo Bay, Cuba, should be held indefinitely without trial under the laws of war, according to Obama administration officials.

The task force’s findings represent the first time that the administration has clarified how many detainees it considers too dangerous to release but unprosecutable because officials fear trials could compromise intelligence-gathering and because detainees could challenge evidence obtained through coercion.

Human rights advocates have bemoaned the administration’s failure to fulfill President Obama’s promise last January to close the Guantanamo Bay facility within a year as well as its reliance on indefinite detention, a mechanism devised during George W. Bush’s administration that they deem unconstitutional.

“There is no statutory regime in America that allows us to hold people without charge or trial indefinitely,” said Anthony D. Romero, executive director of the American Civil Liberties Union.

Actually, yes there is.  In a time of war, we are not required to release combatants from detention regardless of whether they are lawful or unlawful.  Either both sides must wait for hostilities to come to an end before releasing unlawful combatants and POWs, or they can agree to exchanges during hostilities (a practice that has all but disappeared from modern warfare anyway).  In fact, unlawful combatants — those that attack without wearing uniforms or identify themselves with legitimate partisan militias, and those who target civilians — can be summarily shot after a status determination by a military tribunal.

Nothing requires us to end detentions until the end of hostilities.  If the detainees were stupid enough to join an endless jihad against the US, that’s their problem, not ours, in terms of the length of their detention.

Of course, that means actually acknowledging that the US is at war with these terrorist networks rather than attempting to contain a crime spree.  Barack Obama finally started using the war terminology after the Christmas Day terrorist attack attempt, and the DoJ has begun understanding it as well.  Of course, that doesn’t actually jibe with their actions, at least not this week, as Obama sent two more Gitmo detainees to Algeria — which has a growing al-Qaeda network.  Thomas Joscelyn explains the risks:

One of the two was implicated in al Qaeda’s millennium plot against Los Angeles International Airport (LAX) in California. The other is allegedly a devout takfiri, who was plotting attacks against American forces in Afghanistan in 2002 and was also responsible for two attacks against churches in Pakistan that same year.

The first of the two is Hasan Zumiri (or Hasan Zemiri), an Algerian who lived in the West for years. In Canada, Zumiri was friends with millennium bomber Ahmed Ressam, who plotted to attack LAX in California in late 1999. According to a memo prepared at Guantanamo, Zumiri gave “a video recorder to an individual in order to obtain a reconnaissance video of the target and as a prop when the attack is executed.” In addition, Zumiri gave “an individual 3,500 Canadian Dollars to support the attack in the United States.”

The “individual” in question was Ahmed Ressam, who identified Zumiri while in U.S. custody. The “attack in the United States” was to be Ressam’s attack on LAX, which was disrupted when Ressam was arrested while entering the country from Canada. Ressam, who has cooperated with American authorities since his arrest, later tried to take back his implication of Zumiri (reportedly with the assistance of Zumiri’s attorney), but still conceded that Zumiri gave him the camera and cash. In addition to being used for surveillance, Ressam told authorities that the camera Zumiri gave him was to make him look more like a tourist while carrying out his attack.

According to documents produced at Gitmo, Zumiri knew that Ressam and others were mixing explosives for the attack and wanted to take part. Indeed, Ressam told authorities that Zumiri was aware that he was going to carry out “a job in America.” …

The other Gitmo detainee transferred to Algeria is Adil Hadi al Jazairi Bin Hamlili. According to documents produced at Gitmo, Hamlili is a particularly nasty takfiri, which means he is a hardcore ideologue who believes that not only Christians and Jews, but also most Muslims, are infidels.  In fact, Hamlili allegedly killed Osama bin Laden’s personal representative in Pakistan because Hamlili felt he had violated sharia law. Despite this incident, memos produced at Gitmo note that Hamlili worked for the Taliban, al Qaeda and a variety of other terrorist groups in Pakistan and Afghanistan.

Hamlili was allegedly part of a trained IED cell plotting attacks against Americans in 2002.

We know that these two men prepared terrorist attacks against the US, and now we’re setting them free.  Why?  If we’re going to keep 50 incorrigibles indefinitely, then why release any of them?  They should remain in our custody in the military system until the hostilities cease.  We can keep building prisons, after all.

Or, more to the point, we can keep the one we have that was expressly designed for that purpose.  Why close Gitmo?  It is still the best operational venue for terrorist detention.  If we’re agreed that we need to hold them, let’s hold them in the place  we designed for it.