Over the past few years, there has been much talk in the US about shutting down Guantanamo Bay, the notorious military prison. The thrust of debate is that the prison has fulfilled what it was built to do: interrogating and locking up allegedly dangerous men captured in the wake of the 9/11 attacks.
In his 2015 State of the Union address, President Barack Obama reiterated a promise he had spelled out when he took office: to finally shutter the prison. "It makes no sense to spend three million dollars per prisoner to keep open a prison that the world condemns and terrorists use to recruit," he said. "Since I've been president, we've worked responsibly to cut the population of Gitmo in half. Now it's time to finish the job."
During Obama’s presidency, the United States has released 115 prisoners from the offshore military prison. In 2009, there were 241 detainees held at the site. As of early 2015, the total number of prisoners was 122, 57 of which are cleared for release. Those who left were repatriated, or resettled in third countries. The transfers are seen as moving one step closer to fulfilling Obama’s strategy of making the prison a thing of the past.
Rights lawyers who have been working on the Guantanamo file have different views on how the closure will come about and what it entails, however.
“Over the past year, we started seeing a new kind of legal challenge to continuing detention, summed up in the concept of end of hostilities,” J. Wells Dixon, a lawyer at the Center for Constitutional Rights, who has represented many Guantánamo prisoners, said in a phone interview.
In other words, since the war between the US and Afghanistan has ended, there is no need to retain a detention centre that served the war’s larger aim of unseating the Taliban and dismantling Al Qaeda in its birthplace. The US ended its combat operations in Afghanistan at the end of 2014, but thousands of US troops have not yet pulled out.
Of detainees transferred or released since 2002, Afghanis made up the vast majority of the prison’s population. But today, Yemenis have replaced them since transfers back to Yemen were stopped in 2009 in response to an attempted plane-bombing.
Jonathan Hafetz, a lawyer and professor at Seton Hall Law School, told Ahram Online that "end of war" questions, which will be given increasing attention in the next few years, will have to battle with the following issues: Congress’s intransigence on closing down the prison, re-forging trust between lawyers and the judiciary, and the rise of the so-called Islamic State.
Hafetz represented three detainees at Guantanamo and was a member of the legal teams on the landmark Rasul and Boumediene cases in the US Supreme Court -- the court cases that established prisoners’ right to access federal courts in order to challenge their detention. Throughout his legal career, he has seen Congress repeatedly strike down prisoner attempts at attaining their freedom.
Between 2002 and 2008, detainees fought for legal protections including those stipulated by the Geneva Conventions.
In 2005 and 2006 respectively, Congress passed the Detainee Treatment Act (DTA) and the Military Commissions Act (MCA) in attempts to bar Guantanamo prisoners from taking legal action against their imprisonment, both of which were overruled.
A landmark constitutional ruling on 12 June 2008 held that detainees had the right to file habeas corpus writs that challenged their detention, and that courts had jurisdiction to hear their lawsuits. If a habeas corpus petition is accepted, then the case could go to trial.
“Congress has played an increasingly destructive role” since 2005, Hafetz said. “First, it sought to block all access to the courts. Second, since 2010, it has sought to erect barriers to the transfer from prisoners from Guantanamo, whether to the US or to other countries.”
In January, a few members of Congress, including John McCain, introduced a bill that would halt transfers from Guantanamo for two years and prohibit the return of Yemenis to their home country. The bill could potentially take away from the power the transfers now hold, which according to Dixon, is telling.
“More transfers are happening,” he said, “because the government fears that if detention challenges are brought to court, the detainees will prevail and that will unravel the government’s detention authority.”
Given Congress's hostility to the plight of detainees, Hafetz said, the best hope now lies, as it has from the beginning, in the courts. However, that can only be achieved if judges show more interest in Guantanamo cases and if they “encourage lawyers and advocates to focus their attention there.”
The focus on the Islamic State and the reinvigoration of insurgency in the Middle East will not ease the process of closure for Obama, Hafetz believes. Most likely, he said, Guantanamo will remain open into the next administration.
Before 2014, detainees could not bring cases that involved making complaints about the conditions of their confinement. Now, judges can hear what detainees see as infringements on their rights, including force-feeding, and other matters.
In general, conditions have improved since Obama came into office in 2009, Dixon said, but a massive hunger strike in 2013 involving more than a hundred detainees saw the protesters force-fed. Another agitating issue is an intrusive strip search required if detainees leave their cells, whether to meet with their lawyers or to attend a medical appointment.
Dixon has taken several trips to Cuba since 2005. “It takes a whole day to get there,” he said, and “things could be better or worse depending on who is in charge [at the prison].”
“There is a pervasive attitude amongst those in the guard force that we're not welcome; but as lawyers, we have a legal right to be there,” he said.
“Currently, there is an attitude that we are the enemy that wasn't there before. It is the function of who's in charge and what kind of example is set by the leadership.”