In his first days in office, President Barack Obama halted all prosecutions of Guantanamo detainees and signed the order to close the prison camp within the year. But legal experts tell FRONTLINE/World that the new administration will face tough questions about what to do with the prisoners who remain, and how to conduct U.S. detention policy in the future, as the wars in Iraq and Afghanistan continue.
Q: Who are the prisoners still being held at Guantanamo?
"The nature of the questions we are facing about who these people are, are exceptionally difficult. The facts are very murky. The evidence is very contradictory and unclear; comes from unreliable sources; comes from unpalatable means of extracting information from people, frankly; comes from disreputable people; and is often collected in ways that donít really lend themselves to reliability." ~ Benjamin Wittes, Brookings Institution, Author of Law and the Long War
"You have human rights groups, on the one hand, who have made it seem as though everybody thatís detained at Guantanamo Bay is a goat herder or a farmer, when thatís far from the truth. People like Khalid Sheikh Mohammed are far from innocent farmers. They are admitted killers. On the other hand Ö you had Secretary Rumsfeld describing the Guantanamo detainees as the worst of the worst. And thereís no world in which the Uighur detainees or Salim Hamdan can really be called the worst of the worst. They were either not affiliated with Al Qaeda and the Taliban or they were, you know, the most low-level functionary people in the organization who itís difficult to really conceive of as the worst of the worst."
~ Vijay Padmanabhan, Former State Department Lawyer
Since the first prison camp at Guantanamo Bay, Cuba, opened its doors in January 2002, nearly 800 prisoners have been held there. The majority of these men were eventually sent back to their home countries without ever facing trial. Of the roughly 250 detainees who remain, only 80 are expected to be prosecuted. The other prisoners represent the wide range of detainees who were captured and sent to Guantanamo over the past seven years. Some are prisoners that the U.S. government believes are too dangerous to release but lacks the evidence to bring to trial. A second group of detainees are men whom the United States wishes to return to their home countries, but who require monitoring that the home country has not agreed to provide. A third group of detainees includes prisoners like the Uighurs, whom the military has cleared for release, but who cannot be returned to their home countries because the United States fears they will be mistreated or because the home country will not accept them.
Q: What legal rights do Guantanamo detainees have?
"To the extent that detainees at Guantanamo had some legal rights, the U.S. government wouldn’t articulate clearly what those legal rights were, and it seemed to be adopting interpretations of legal standards that permitted a lot of leeway when it came to detention and interrogation." ~ Matthew Waxman, Former Assistant Secretary of Defense for Detainee Affairs, 2004-2005
"Gitmo was intended to be a place where you could neutralize serious bad guys, where you could hold them in an environment that was entirely operationally secure and that was out of the purview of the U.S. justice system. … So they could basically do what they wanted to, as long as they took the political heat for it." ~ Benjamin Wittes, Brookings Institution, Author of Law and the Long War
From the outset, the legal rights of Guantanamo detainees were largely undefined. The Bush administration argued that, since the prison camp was not located on U.S. soil, prisoners were beyond the reach of U.S. courts. At the same time, the administration also took the position that prisoners captured in the “war on terror” were nontraditional enemy combatants who did not qualify for the protections and legal procedures of standard military commissions.
Instead, the Bush administration created special military commissions to prosecute Guantanamo detainees. These commissions did not adhere to the standards of the Geneva Conventions, which meant that prisoners at Guantanamo Bay could be held indefinitely, without trial, and at the discretion of the Executive Office.
Over the past seven years, the government’s position would be challenged by a series of legal cases that created a de facto set of legal rights governing the continued detention of prisoners. Key decisions included affirming the right of prisoners to challenge the validity of their detentions in the U.S. court system, and the creation of a formal procedure within the military justice system for assessing the combatant status of each detainee.
Within hours of taking office, President Obama ordered the suspension of all ongoing prosecutions of Guantanamo prisoners. Over the following 120 days, his advisors will evaluate the military commissions put in place by the Bush administration to prosecute detainees as well as the specific cases that will likely be brought to trial.
Q: What are some of the options being discussed to deal with the remaining Guantanamo prisoners?
"Finding alternative detention facilities, presumably inside the United States; working with other countries, home countries of the detainees at Guantanamo or perhaps third countries, to resettle and deal with managing the continuing threat of detainees who we don’t want to continue to detain ourselves. Working with third countries … or perhaps bring[ing] into the United States, paroling into the United States, those detainees who we believe don’t need to be detained but who can’t be sent home to their country of origin out of fear that they would be tortured, persecuted or executed; and then finally, there’s what I think is the toughest issue of all. Which is, even if you’ve worked out all of those practical obstacles that I’ve just mentioned, working through the issue of what legal basis and what legal rules the United States will use to continue holding detainees inside the United States." ~ Matthew Waxman, Former Assistant Secretary of Defense for Detainee Affairs, 2004-2005
Read the full interview with Matthew Waxman >>
The Obama administration has not yet released details of how it intends to deal with the remaining detainees at Guantanamo Bay. But legal experts have raised several possibilities. One option, dubbed the “Try and Release” plan, has reportedly been favored by the Obama camp during the presidential campaign. It includes using the existing framework of federal courts and criminal law to prosecute the roughly 80 detainees who can be tried and sending all other detainees back to their home countries or to host countries, as soon as possible.
A second option for the administration is to create an alternative court system or “national security courts” that would handle terrorism suspects who are neither typical criminals nor traditional prisoners of war. The new court would be a hybrid combining the criminal and military justice systems.
A third option would be to continue prosecuting detainees using a form of military courts. However, it is likely that these military courts would differ greatly from the Bush administration’s military commissions. Obama has vowed to adhere to the Geneva Conventions and to reject the Military Commissions Act that was signed into law by the Bush administration in order to circumvent the Conventions.
Q: How will U.S. detention policies be shaped in the future?
"It’s hard to understand how we could be so uncomfortable about Guantanamo and not talk about Bagram. The same thing is going on, right? Involving many of the same categories of people. The major difference is that there are, or have been, more of them at Bagram. And there are tens of thousands of them in Iraq." ~ Benjamin Wittes, Brookings Institution, Author of Law and the Long War
"Detention is a messy mission; I don’t think it's one that any country wants to have responsibility for. The reality is … in continuing to wage combat operations in Afghanistan and Iraq, and in continuing to conduct counter-terrorism operations around the world in cooperation with coalition partners, the United States or its allies are going to continue to capture and need to hold and want to question terrorism suspects. The bigger and more important issue, though, is where are you going to hold detainees in the future? And perhaps even more important than that, under what legal framework are you going to hold them? ~ Matthew Waxman, Former Assistant Secretary of Defense for Detainee Affairs, 2004-2005
With the decision to close Guantanamo, President Obama signaled to the world that he intends to change how the United States conducts the fight against terrorism. But many of the same issues raised by Guantanamo can also be applied to U.S.-run detention facilities throughout Iraq and Afghanistan. How the new administration will deal with the tens of thousands of prisoners in these facilities is a question that remains to be answered.
Q: What barriers will the administration face in closing Guantanamo?
"The first thing is this repatriation issue -- which is that, if you have detainees at Guantanamo that you want to send home but cannot be sent back to their home country because of human rights concerns, what do we do with them? The second problem is that you do have countries which have not taken, are not able to take, the security measures that you feel are required to return the people to those countries. And then lastly, you have to figure out what do you do with the residual population? The people that we can’t find a way to send home and that we can’t prosecute." ~ Vijay Padmanabhan, Former State Department Lawyer
Read the full interview with Vijay Padmanabhan >>
One of the toughest barriers to closing Guantanamo is the question of what to do with prisoners whom the U.S. government does not wish to prosecute or to continue holding. In the case of prisoners such as the remaining Uighur detainees from China, whom the U.S. government has not been able to find a country willing to take, one option would be to release some of them into the United States. Recently, a few European nations, such as Portugal, Germany, Switzerland and France, have signaled a willingness to accept some detainees for resettlement, as a gesture of goodwill to the new administration. Another subset of prisoners whose disposition the government will need to resolve includes roughly 90 Yemenis whom the Bush administration has been unwilling to release because of concerns that the Yemeni government cannot sufficiently monitor them.