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United States

Guantanamo will shift, not close

Critics accuse US President Barack Obama of breaking his promise to close Guantanamo. But his hands are tied by a reluctant Congress - and an America that might not want captured terrorists on its soil.

Even if "most Americans are more ready" to see Guantanamo Bay's detention camps closed, as Republican Senator John McCain cautiously phrased it in June, for the foreseeable future the island's 164 detainees will have to wait for events in the Middle East and a partisan roadblock in the US House of Representatives to be resolved.

Eighty-four detainees have already been cleared for transfer to foreign countries, says Raha Wala, a senior council member at Human Rights First. "Some of those detainees will have to be resettled in third countries, because either their home countries are unable or unwilling accept them, or there's a credible fear that they'll be tortured there."

Republicans have a different fear, one founded on events in late July and early August when upwards of 500 al-Qaeda linked terrorists escaped prisons in Iraq, Libya and Pakistan. Since then, a worsening security situation in Yemen, the home country of the majority of Guantanamo detainees, has stalled plans by President Barack Obama to restart detainee transfers to that country. Most recently, an October 22 jail riot involving dozens of al-Qaeda prisoners was subdued with tear gas in Yemen's capital. No prisoners have been transferred to Yemen since 2011.

The detainees, in other words, will be sent home slowly. If Guantanamo is to be closed down under Obama's tenure, many of the 84 - along with another 46 considered "too dangerous" to release - "will likely have to be transferred to the US," Wala says.

Terrorists in US prisons?

Matthew Waxman

Matthew Waxman: Threat of prisoners being brought to the US 'is used to great political effect'

Placing international terrorists behind American bars, however, is controversial. At a Senate Judiciary Committee hearing on the subject in late July, Republicans voiced concerns that detainees might be placed alongside American inmates, where they could spread extreme Islamist ideologies. Worse, they argue, terrorists might be released due to a lack of evidence, ultimately ending up free men on US soil.

But Matthew Waxman, who worked within the Defense State Departments on detainee issues during the administration of US President George W. Bush, considers the latter scenario improbable.

"A dangerous detainee being released into the United States is a very low probability, but it is used to great political effect," the Columbia University law professor told DW.

US prisons already hold high-profile terrorists: A super maximum security prison in Florence, Colorado houses British "shoe bomber" Richard Reid, 1993 World Trade Center bomber Ramzi Yousef of Pakistan as well as the "The Blind Sheik," Omar Abdel-Rahman of Egypt.

In all likelihood, though, Guantanamo detainees would never be transferred to such a prison. In a May 2013 speech given at Fort McNair in Washington D.C, Obama announced the reinstatement of a special Defense Department post to determine a location for Guantanamo detainees on US soil. Even if relocated to the US, the president said, some detainees still "cannot be prosecuted - for example because the evidence against them has been compromised or is inadmissible in a court of law."

U.S. President Barack Obama speaks about his administration's counterterrorism policy at the National Defense University at Ft. McNair in Washington, May 23, 2013. Obama outlined plans on Thursday to limit the use of U.S. drone strikes and took steps aimed at breaking a deadlock on closing the military prison at Guantanamo Bay, Cuba. REUTERS/Larry Downing (UNITED STATES - Tags: POLITICS MILITARY)

President Obama called on Congress to lift restrictions on detainee transfers from Guantanamo

Yes they can

Human Rights First rejects the president's assertion - as well as the corollary argument that a civilian trial would compromise national security intelligence. "There are methods that can be used to create summaries and alternative assessments," Wala says. "You can also go into closed sessions, where you can even consider classified information in prosecution without revealing those processes and methods to the broader public."

Roughly 46 detainees qualify for indefinite detention because they're "too dangerous" to released, Wala says.

For Waxman, the legal aspect of indefinite detention is clear: Under law-of-war authorities, detainees can continue to be held in the US without criminal trial. Nor would their presence on US soil suddenly endow them with significant legal privileges.

"Moving detainees from Guantanamo to facilities inside the United States would result in marginally increased legal protections, but not as much as often assumed," he said. Just as in Guantanamo, detainees could challenge detention in court through habeus corpus suits. Even if the US president were to call an end to the "War on Terror," it would not necessarily terminate the country's right to hold those detainees.

"If courts were otherwise to find that there was no legal basis to hold some of them, Congress could legislate additional powers to hold detainees, pending their deportation to other countries," Waxman said.

Guantanamo light

The prospect of indefinite incarceration without trial on US soil, however, raises difficult questions. Is a "Guantanamo light" on US soil any better than the one in eastern Cuba? Wouldn't it represent a shifting of the problem?

But Wala sees this as a potentially important move. "Shifting the detainees to the US is an important step to ultimately close the symbol of Guantanamo, as an island offshore prison that has been used for torture and other human rights abuses," he said. "It does not mean we can ignore the detainees in the US if they are in fact moved there."

The interior of an unoccupied communal cellblock is seen at Camp VI.
Photo: Bob Strong

In May, detainees went on hunger strike to draw attention to their situation

The entire discussion may be moot, however, until both chambers of Congress contain a majority of legislators in favor of closing Guantanamo. A month after Republicans took control of the House of Representatives in 2010, they attached a provision to the National Defense Authorization Act (NDAA) making it illegal to use Pentagon funds to transfer Guantanamo prisoners to the US. Congress, in other words, holds the purse strings - and not the president. Though Democratic members of Congress plan to introduce an amendment to the 2014 NDAA to transfer that authority back to the commander-in-chief, their current minority position in the House makes success unlikely.

In spite of resistance in the House to the Obama administration's attempts to close Guantanamo, Wala still sees reason to hope for bipartisan action.

"In 2008, both political presidential candidates, John McCain and Barack Obama, supported closing Guantanamo. Even President Bush, who opened Guantanamo, supported closing it. Most of our national security top national security officials support closing," he said.

Whether Congress feels the same way - or is prepared to engage in what John McCain called "an act of moral courage" by closing Camp X-Ray - appears unlikely under Obama's tenure.

DW.DE