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This photo taken June 20, 2013 shows the abandoned guard tower at Camp X-Ray, Naval Station Guantanamo Bay, Cuba. Bill Gorman/AP/Press Association Images

Column Why is Guantanamo Bay still open?

Detainees eligible for release from Guantanamo Bay are caught in limbo: the US won’t accept them and foreign countries are reluctant to take in refugees who have been incarcerated with terrorists, writes Scott Fitzsimmons.

A LIGHTENING ROD for controversy since opening in January 2002, the Guantanamo Bay detention camp will likely outlast Barrack Obama’s presidency. Obama railed against the facility during his 2008 campaign for the White House, and, on his second full day in office, in January 2009, he signed an executive order stating that it should close within a year.

Over four years later, the facility still houses 166 detainees, dozens of whom have been on a hunger strike since February 2013 to protest their indefinite confinement. In fact, Guantanamo may soon receive hundreds of millions of dollars in upgrades to allow it to function as a detention centre for years to come.

America’s sad chapter

Why has it proven so difficult to close Guantanamo Bay and finally bring what Obama once called a “sad chapter in American history” to an end?

Three long-standing issues have proven particularly intractable. First, in the years since the president issued his executive order, Congress has legally barred him from transferring Guantanamo detainees to prisons on American soil. This has largely been accomplished by including provisions in the annual National Defense Authorization Acts (NDAAs) that prohibit the use of federal funds to pay the administrative, transportation, security, and upkeep costs associated with transferring detainees to the American civilian prison system.

Since the NDAAs set the annual budget of the US Armed Forces, which runs into the hundreds of billions of dollars and directly effects millions of lives, equipment purchases, and ongoing military operations, a president cannot veto an Act without setting off a political and administrative firestorm. As a result, Obama has reluctantly, though repeatedly, undermined his own legal authority to close Guantanamo.

A Guantanamo detainee is shackled to the floor while attending a class in “Life Skills” at Camp 6 high-security detention facility at Guantanamo Bay U.S. Naval Base, Cuba in 2010. (AP Photo/Brennan Linsley, File)

Posing a threat to national security

Congress has justified these provisions by claiming that the Guantanamo detainees pose too great a threat to the security of the United States and its citizens to let them to set foot on American soil. Wary legislators envision al-Qaeda’s finest manufacturing improvised explosive devices inside civilian prisons and using them to escape or martyr themselves in a blaze of glory.

These officials must not be aware that America’s civilian prison system already securely houses over 350 people convicted on terrorism-related charges, including a former aide to Osama bin Laden, the plotters of the 1993 World Trade Center bombing, and the so-called “shoe bomber,” Richard Reid. Nevertheless, the stance adopted by legislators has proven popular with the American public since opinion polls consistently highlight their fear over the prospect of imprisoning Guantanamo detainees inside the United States as well as their strong preference for keeping the facility open indefinitely.

A second issue that has complicated efforts to close Guantanamo is the ongoing uncertainty over what to do with the 80 or so detainees that US officials have deemed little or no threat to the United States, and thus worthy of release, but that cannot be transferred to another country. In addition to banning the transfer of detainees to American civilian prisons, current legislation bars Guantanamo detainees from applying for asylum or refugee status in the United States.

Guantanamo detainees are pictured inside a common area at Camp 6 high-security detention facility at Guantanamo Bay U.S. Naval Base, Cuba IN 2010. (AP Photo/Brennan Linsley)

Never been convicted at trial

In some cases, governments are reluctant to allow their detained citizens to return due to the possibility, however slight, that they may pose a security risk or trigger domestic political problems. In other cases, detainees are reluctant to return home because they fear being mistreated by their government or fellow citizens. Moreover, even though the vast majority of Guantanamo detainees have never been convicted of a crime under American law, years of incarceration alongside suspected terrorists makes them unattractive immigration prospects for countries that routinely accept large numbers of refugees and asylum seekers.

It consequently took years to find countries willing to take in a handful of Uyghur Chinese who were determined to not be enemy combatants but feared persecution by the Chinese government for the religious beliefs. Some low risk Algerian detainees, likewise, fear persecution by their own government and remain at Guantanamo because they lack anywhere else to go. A few generous countries, including Ireland, Switzerland, and Italy, have accepted small numbers of low risk detainees but, at the current transfer rate, it will take several years to find homes for the rest.

Finally, efforts to close Guantanamo have also been hampered by the issue of what to do with the approximately four dozen “hard cases” who currently reside there. These are the “worst of the worst” detainees, which US officials deem to be at high risk of taking part in further terrorist activities. Many have incriminated themselves under torture or other “enhanced interrogation techniques”.

A monument at Camp Justice, site of the military commission courthouse in 2010. (Colin Perkel/The Canadian Press/Press Association Images)

Indefinite incarceration

As a result, while US officials are certain they pose an ongoing security risk, they can likely never be convicted and sentenced in a fair, impartial trial. Since transferring these detainees to another American prison is not currently possible, removing them from Guantanamo requires the cooperation of foreign governments that are willing to continue their indefinite extra-judicial incarceration.

However, because foreign governments may eventually decide to release a high risk detainee, the Obama administration has concluded that most of the remaining hard cases can probably never be released from US custody. This concern is well-founded. For example, a former detainee named Abdallah Salih al-Ajmi was transferred to Kuwaiti custody in 2005. He was released in 2006 and subsequently carried out a suicide attack in Iraq.

Closing Guantanamo during Obama’s second term is highly unlikely

These long-standing issues make the prospect of closing Guantanamo during Obama’s second term highly unlikely. Moreover, even if these issues, particularly the first one, are eventually resolved and the so-called “worst of the worst” detainees can be transferred to prisons on American soil, their human rights and overall quality of life may not significantly improve. To be sure, joining the civilian prison system should grant detainees better access to their lawyers and the courts.

On the other hand, detainees would lose the relative safety and freedom of movement they currently experience at Guantanamo Bay, which is largely made up of non-violent detainees who are granted access to such creature comforts as communal living spaces and football pitches. Indeed, detainees sent to a civilian maximum security prison could face attacks from hardened career criminals, and those sent to super-max prison could be forced to endure their indefinite legal limbo in a psychologically-crippling solitary confinement cell.

Scott Fitzsimmons is a Lecturer in International Relations in the University of Limerick’s Department of Politics and Public Administration, where he teaches modules on the causes of wars.

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