It’s been over twelve and a half years since the detention camp in Guantanamo Bay, Cuba, opened its gates, on January 11th 2002, to a first group of 20 prisoners in shackles who had been swept up near the border with Pakistan at the onset of the American war in Afghanistan. Yet, despite many promises to the contrary, the highly controversial, much criticized military prison remains in use, home to 149 detainees today. It undoubtedly stands as a stain on the global reputation and human rights record of the United States, but it also embodies a complex international law dilemma in this era when the rules of war are changing as terrorist groups and insurgencies from failed states or with little consideration of official borders are taking the place of national armies. And because it falls in a grey political, legal and security area, it is hard to imagine it will close any time soon.
“The fact that the US intends to continue to detain people indefinitely is precisely the problem of Guantanamo,” says Andrea Prasow, deputy Washington Director at Human Rights Watch. “Until the US definitely rejects the notion of prolonged indefinite detention without charge or trial, the idea of Guantanamo will never end, regardless of where people are held.”
Of the prisoners that are left in Guantanamo, 78 have already been approved for release by an in-depth review ordered by President Barack Obama after he took office. Six of them are scheduled for transfer to Uruguay soon. The other 71 have not been cleared. 33 of these could potentially be prosecuted as criminals, either in US civilian or military court. The other 38 are held for continued detention without prosecution.
The delays that are plaguing the discharge of the first set of 78 largely have to do with the diplomatic dance, some time involving more than two nations, necessary to straighten out the details of their resettlement (former Guantanamo prisoners have ended up in places as unlikely as Bermuda, Palau and Cape Verde). “In same cases, their home countries don’t want them back,” says John Bellinger III, who served as legal adviser to the Department of State from 2005 to 2009 and senior associate counsel to the President and legal adviser to the National Security Council (NSC) from 2001 to 2005. In his trips to Europe, Bellinger was often asked why, if there was evidence that these people had done terrible things, the US wouldn’t just prosecute them. “In other cases, their countries want them back but will not provide any guarantee that they would be treated properly [this has long been the case of the Uyghurs, a Muslim minority from China, though the last of them left Guantanamo at the end of last year]. In yet other cases, countries cannot or will not provide guarantees that these detainees, once freed, will not return to the fight in some way.” A large chunk of people in this last category is from Yemen, reportedly lower-level foot soldiers of Al Qaeda or affiliated organizations. Though they have been cleared, the US is having a hard time letting go of them due to Yemen’s increasingly volatile situation.
The US Congress has not made things any easier for the Obama Administration. Starting in 2011, it began placing restrictions on what the White House could do with the detainees, practically banning their transfer to the US and making it exceedingly difficult to have them moved even to other countries [any such decision required the Secretary of Defense to sign off on an all too ambitious certification process determining that, once freed, these people would never again re-engage in terrorism-related activities]. These restrictions have been partially lifted at the end of 2013, and in fact the number of detainees being released from Guantanamo has picked up since.
This leaves the 71 prisoners who are either awaiting a trial of some sort or are simply held for indefinite detention. “This is the single issue that no European understands and that I wish I had the opportunity to explain so that they would see the US dilemma better,” says Bellinger, who is now a partner at Arnold & Porter LLP and an Adjunct Senior Fellow at the Council of Foreign Relations. “The answer is that US criminal law did not, in 2001, apply extra-territorially to non-US nationals that hadn’t actually committed an attack against the US,” he explains. “They did not make it a federal crime for a foreign national to be training at a terrorist camp or to be making bombs outside of the US.” Even trying them in military tribunals for war crimes has proven complicated, for not all terrorism-related activities were necessarily recognized as such in 2001.
But once it had these people in custody and, allegedly, sufficient evidence to know that they posed a tangible danger, the US had a hard time letting go of them as a security matter. According to this view, Guantanamo then owes its continued existence to a lack of appropriate legal tools for dealing with this particular situation. “In an ideal world, a country should send an extradition request to Pakistan, for example, asking the authorities to go into the mountains of the Northwest provinces, arrest the bomb-makers and extradite them to the US, or ask the United Nations Security Council to call on Pakistan to act on the problem,” says Bellinger, who nevertheless agrees that Guantanamo is too problematic of a solution for the US and should be closed. “The problem is these alternatives that in theory sound more attractive and more multilateral are not realistic.”
For human rights activists, this isn’t a good enough excuse. “Theoretical danger is not a legal basis for detention,” says Prasow. “There is and always has been one solution to Guantanamo: prosecute or release. Most people in Guantanamo are being held illegally without charge.”
Congress’ restrictions on moving detainees out of Guantanamo and to the US have also forced the Obama Administration’s hand on the use of military commissions, which it had hoped to abandon in favor of federal courts and instead has had to retain. The paradox here is that military commissions have shown to be much less effective at metering out justice than their civilian counterparts. According to a 2011 report by the New York University’s Center on Law and Security, since the beginning of the “War on Terror” some 578 cases had by then been prosecuted in US federal courts, 431 of them resolved with an 87% conviction rate. Over the same period, Human Rights Watch estimates that the Guantanamo military commissions brought only seven cases to completion.
In short, the detention camp, and generally the concept of holding foreign nationals for prolonged indefinite detention without trial, remains a thorn in the flesh of the White House. Unable to find a viable political and legal solution to this problem, the Administration has devoted its efforts to try and make it go away little by little, one release at the time. The last detainee arrived in Guantanamo in March of 2008. Since President Obama took office, the fight against terrorism has shifted focus, to a tool that it isn’t without its critics. “Drones have turned out to be the Obama Administration’s counterterrorism weapon of choice,” says Bellinger. “Perhaps because they don’t want to detain people, they have relied for six years very heavily on simply killing terrorist suspects.”