Why is it so hard for Obama to shut down Guantanamo?

05/09/2013 5:05 PM

05/13/2013 5:48 AM

Presidential candidate Barack Obama pledged that he’d close the Guantanamo Bay detention facility. Easier said than done. As president, Obama has failed to shut down the facility he calls “expensive,” and “inefficient” and a “recruitment tool for terrorists.”

On April 30, Obama promised that he’ll “go back at” the Guantanamo problem, which frustrated him during his first term. His pledge raises many questions, some easier to answer than others.

Q: How long has the Guantanamo detention center been around?

A: Then-Defense Secretary Donald H. Rumsfeld announced on Dec. 27, 2001, that some prisoners captured in Afghanistan would be held within the bounds of the 45-square-mile U.S. Naval Station at Guantanamo Bay, Cuba, which the United States has occupied since 1903 under a lease that gives the U.S. rights “in perpetuity.” The first 20 detainees arrived Jan. 11, 2002.

Q: Why Guantanamo?

A: According to a report by the Constitution Project, a policy research center, Pentagon officials considered a variety of Pacific island and other remote locations for holding men detained during the so-called war on terrorism that President George W. Bush declared after the Sept. 11, 2001, terrorist attacks on New York and Washington. Officials eventually turned to Guantanamo, which previously had been used to house Haitians and Cubans who’d been picked up on the high seas trying to reach the United States.

Officials thought that in addition to providing limited access, which would ease security concerns, Guantanamo would keep the men held there from accessing U.S. federal courts since Guantanamo is part of Cuba. The Supreme Court eventually rejected that argument, however, and allowed the detainees to file habeas corpus petitions challenging their imprisonment.

Q: Who is being held at Guantanamo?

A: Currently, 166 men are detained there, more than half of them from Yemen. Three of the 166 have been convicted of crimes by a military commission, seven have been charged with crimes – including the five accused of conspiring in the 9/11 attacks – and 24 may face criminal charges. Of the remainder, 86 have been cleared for release or transfer to other countries and 46 face no criminal charges but a multi-agency review of their cases found them to be too dangerous to release. At its peak, in May 2003, the facility held about 680 men. The last prisoner arrived in March 2008.

Q: Why are they called detainees rather than prisoners?

A: The Pentagon says it uses the term for most of the men because they haven’t been convicted of crimes. The three who’ve been convicted are called prisoners.

Q: What are the conditions like?

A: When the first detainees arrived, they were housed in wire enclosures that looked like a backyard dog kennel. Now most detainees are in air-conditioned buildings, styled after a maximum-security prison in the United States. The buildings are called camps, though they have little in common with the image that word conjures.

Until recently, most of the detainees were in Camp 6, where they were allowed to keep their cell doors open and move freely in a common area where they could watch television and eat together. But in April, in response to detainees’ covering cameras used to monitor them, the guards forced all the prisoners back into their single-occupancy, 6.8- by 12-foot cells. The most secret of the facilities, Camp 7, holds an estimated 15 of the highest-value detainees, including those accused of planning the 9/11 attacks. As of Monday, 100 detainees were refusing food; 23 of those are force-fed twice daily through tubes snaked up their noses and down their throats.

Q: What rules apply to how they’re treated?

A: The United States characterizes most as “unprivileged enemy belligerents,” rather than prisoners of war. Under Executive Order 13492, however, detainees are supposed to be treated in a manner consistent with Common Article 3 of the Geneva Conventions, which among other things prohibits “outrages upon personal dignity.” Congress also has specified certain standards through laws such as the 2005 Detainee Treatment Act, which prohibits “cruel, inhuman or degrading” treatment and requires that interrogations conform with conventional U.S. Army standards.

Q: Does the U.S. Constitution apply to detainees at Guantanamo?

A: To a degree, yes. The U.S. Supreme Court ruled in a 2008 decision called Boumediene v. Bush that Guantanamo detainees had the same constitutional right to file a habeas corpus petition as prisoners in the United States. Although Cuba owns the Guantanamo land, the Supreme Court noted, the United States has exercised “complete jurisdiction and control” for more than 100 years. Consequently, the justices reasoned that this amounted to de facto U.S. sovereignty.

Q: How much does Guantanamo cost to operate?

A: The Obama administration reported to Congress in mid-2011 that it “spends approximately $150 million per year on detention operations at Guantanamo, currently at a rate of more than $800,000 per detainee.” In addition, the Bush and Obama administrations have spent hundreds of millions of dollars to upgrade the facility. The average cost to hold a prisoner in the United States is about $30,000 per year.

Q: What’s stopping Obama from closing it and moving the men to U.S. prisons?

A: Since 2009, Congress has made it difficult for the Obama administration to transfer men out of Guantanamo. The National Defense Authorization Act for Fiscal Year 2013 prohibits using any military funds to transfer detainees to the United States. It also prohibits transfers to foreign countries unless the secretary of defense certifies that the country meets certain standards, including that it isn’t “facing a threat that is likely to substantially affect its ability to exercise control over the individual.” That’s a problem for Yemen, which has an active al Qaida branch. After a Nigerian who said he’d been recruited in Yemen tried to blow up a Detroit-bound plane, Obama ordered a halt to all transfers to Yemen. That’s held up the release of 26 Yemenis who’ve been approved for transfer and 30 more who the U.S. says could be transferred back to Yemen if the government there demonstrates it can hold them.

Q: How many released Guantanamo detainees have returned to fighting the United States?

A: This a hotly debated topic. In January, the director of national intelligence issued a report on what had become of 603 men who’d been transferred out of Guantanamo. The report found that 97 were “confirmed of re-engaging” against U.S. forces, of which about half were dead or back in custody. Another 72 were “suspected of re-engaging” against U.S. forces, though there was no explanation of what evidence led to the suspicion.

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