JENNA LEE (HOST): Well national security experts raising the alarm with the transfer of 10 Guantanamo Bay detainees to Oman today, Gitmo's prison population now dips below 100, and all of this is part of the president's pledge to close the detention center before he leaves office. Just this week on Happening Now as we first learned of these released detainees and how it was going to happen today, one of our guests explained the real dangers of the president's policy.

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LEE: Tom Joscelyn of FDD there. In the meantime, we're joined now by Charles “Cully” Stimson, former Deputy Assistant Secretary of Defense for detainees, just the person to talk about this with. Cully, I'm curious legally, to what Tom just mentioned there. Here you had a task force under this administration that said these guys are really bad, they can't be released. So how now are they being released?

CHARLES STIMSON: Hi, Jenna. It's the president's prerogative, any president, to determine who to capture during a time of war and whether to let them go during war.  And I've seen the files of every one of these detainees at Guantanamo -- the real files, not just the Joint Task Force's assessment, but the inter-agencies' assessment, the CIA, DOD, et cetera. And so Tom's right, the Obama administration inherited a population of Guantanamo detainees who were deemed high risk by all the intelligence professionals. Not politicos, intelligence professionals. And what they just decided to do, since they wanted to release more people, is just take more risk. And so they changed the calculus on what a risky transfer was, and that's what they're doing right now.

LEE: How does that make you feel, Cully, having seen those records, and you're a public citizen. Does it strike fear in you that those that you saw the profile for are now going to be released?

STIMSON: Look, you know I'm a military guy, and I think the military guy in me is the one that's most concerned. It's an odd war we've been in, Jenna. This is a war where we've detained over 100,000 detainees in Iraq, Afghanistan, and a mere 790 at Gitmo. We've released 99.999 percent of all detainees. We have 93 left. We're still in armed conflict, and really, the window to close Gitmo was in 2009 and 2010 when the Democrats controlled the House and the Senate. But the president didn't spend the political capital to do it, and now with the rise of ISIS and terrorism really on the march, you really have to question whether it's prudent to release more people into the fight.

LEE: I'm curious if you could bring these two things together, again with your legal experience. The president's -- one of his policies has been to take out high-target terrorists through drone strikes, and you have to go through a certain procedure to do that and to get permission and the go ahead from the president to take out a terrorist. Well, as we're learning more, Catherine Herridge, for example, is just learning that one detainee was judged high-risk for returning to terrorism, a supporter of Bin Laden, and threats to America. So somebody like that, for example, could be taken out by a drone strike, arguably. So what kept us from executing this person who was within our custody?

STIMSON: Well, look, legally we cannot deny people quarter, in other words, if they surrender, we have to capture them and treat them humanely. If we capture them, we have to treat them humanely. Law of war detention, is simply designed under the Geneva Conventions to keep people off the battlefield for the duration of the hostilities. You don't have to give them a trial, criminal law does not apply. You can't arbitrarily execute them, you have to treat them humanely. Criminal law on the other side, which doesn't apply here, applies for somebody who commits a crime, and you have to try them within a certain period of time. So we cannot arbitrarily execute people --

LEE: I'm not asking to arbitrarily execute people, but I'm saying if we're using a certain standard to execute them amongst innocent people overseas, then why wasn't that applied here? Because then we wouldn't have this problem. If they were deemed such a risk to America at one time, then we wouldn't even be worried about where we're releasing them, because they wouldn't be around anymore.

STIMSON: Yeah, I see what your getting at. There's two populations here. One is the population of people detained, let's call them prisoners of war, you have to treat them humanely. If, when released or transferred, they go back to the battlefield, then they're a lawful target, and you can target them with lethal force or recapture and detain them again. That's the difference. And, you're right, there is a lot of scrutiny that goes through the military lawyers, the JAGs -- of which I'm one -- to decide whether somebody's a lawful target or not. So if one of these Gitmo grads goes back to the fight, we can lawfully target them.

LEE: Interesting, I was just, again, trying to the bring together these policies that seem to be opposed. I'm sure the administration would argue differently, but trying to sort through it. Just so our viewers know, we think about these detainees as perhaps older men, but the one just released within the last week, has been in Gitmo for 13 years, he's under 40, and he's back in Kuwait and, you know, a big question about what the rest of his life looks like. We're going to have to leave it there. 

Previously:

Fox Co-Host Suggests Killing Detainees To Close Gitmo

Fox News Pushes GOP Horror Story Of Obama Setting Gitmo Terrorists Loose In U.S.

The Flawed Recidivism Statistic Fox Personalities Are Using To Criticize Release Of Guantanamo Detainees

Fox Dismisses Experts' Conclusion That Gitmo's Existence Helps Terrorists' Causes

Top Five Gitmo Falsehoods