Special: The Future of Guantanamo – Q&A
By CHARLIE SAVAGE
The remaining 149 wartime detainees vary greatly, from prisoners the United States government has little interest in continuing to detain to a handful of the most notorious terrorist suspects of the era. In general, they can be divided into two groups: 79 lower-level prisoners who have been recommended for transfer, and 70 higher-level prisoners who have not.
Why haven’t prisoners recommended for transfer been released?
Most of the prisoners in this group come from home countries whose governments are either deemed abusive or incapable of living up to security assurances (like promises to monitor them and prevent foreign travel). For example, 58 are from Yemen, where the central government has limited control and Al Qaeda in the Arabian Peninsula is active. The Obama administration is trying to resettle many of the prisoners elsewhere, but under a statute imposed by Congress, they may be transferred only if Secretary of Defense Chuck Hagel determines that steps have been taken that will substantially mitigate the risk of releasing a detainee. Mr. Hagel has also been slow to approve proposed deals to repatriate several of the detainees, including four Afghans and a Mauritanian.
What will happen to the higher-level prisoners?
The biggest hurdle to closing the Guantánamo prison will be relocating the 70 higher-level detainees whom the government does not want to release, including those charged before a war crimes tribunal and those being held under the laws of war, which permit the indefinite detention without trial of people deemed to be enemy fighters to prevent their return to the battlefield. The Obama administration has proposed moving these prisoners to a military-run prison inside the United States, where most would continue to be held without trial. But Congress has banned transferring detainees to domestic soil for any purpose.
What are the arguments for and against closing the facility?
President Obama promised to close the Guantánamo prison in one of his first acts after taking office in 2009, but Congress has prevented him from carrying out his plan to do so. Mr. Obama argues that the prison is a negative symbol of past detainee abuses that is used for propaganda and recruiting among Islamists, and that it wastes taxpayer money to operate it when federal prisons on American soil — which already hold many convicted terrorists — would be far cheaper to operate. The Obama administration has refused to bring any new detainees to Guantánamo.Some Republicans think that Mr. Obama should instead bring more prisoners to Guantánamo. They contend that moving the detainees to domestic soil would be a bad idea because it could give them greater legal rights or create a target for terrorist attacks. Meanwhile, some civil libertarians oppose Mr. Obama’s plan to hold the remaining inmates in law-of-war detention inside the United States, arguing that it would institutionalize the practice of indefinite detention without trial on domestic soil.
What are the challenges to keeping Guantánamo open?
The military is faced with decaying infrastructure that was built to be temporary. The United States Southern Command, which oversees Guantánamo, has determined about $200 million in construction projects will be necessary to refresh or consolidate the facilities there. Moreover, as the detainees grow older, they will increasingly require more complicated medical treatment and equipment than is readily available at the base, and Congress’s bar on bringing them into the United States currently has no exception for medical emergencies.
What does Guantánamo cost?
Taxpayers are spending about $443 million to operate the Guantánamo prison this year, or nearly $3 million for each of the 149 prisoners. Because many costs are fixed, once the low-level detainees are transferred, the per-inmate cost of housing the remaining ones at the remote naval base would soar even higher. By comparison, the federal Bureau of Prisons — which imprisons many convicted terrorists — spent $30,280 a year per maximum-security inmate in 2013. The Bureau of Prisons figure is not quite comparable because, for example, it does not include the cost of the federal court system, whereas the Guantánamo figure includes military commissions.
Will the legal basis for wartime detentions expire?
The detainees who are being held without trial are subject to law of war detention. In an armed conflict, a party may indefinitely detain members of the enemy force until the end of hostilities in order to prevent their return to the battlefield. This rule has humanitarian origins: It was designed to give armies an alternative to killing their enemies to eliminate any future threat. But it is a rule that was written for conflicts between nation-states, like World War II, that come to a formal end after a few years, after which prisoners of war are repatriated. From one perspective, it is not clear when or how hostilities can reach an official end in the conflict against an amorphous network like Al Qaeda, changing the nature of this legal authority as the years keep passing by, raising the specter of life imprisonment without trial.In habeas corpus lawsuits, the government has relied on a 2001 law called the Authorization to Use Military Force, or A.U.M.F., by which Congress authorized an armed conflict against those who planned or aided the Sept. 11 attacks and those who harbored them. The A.U.M.F. is the foundation of the war in Afghanistan, where combat operations are officially ending this year. The government is bracing for a new wave of habeas corpus challenges after December, contending that detainees must be sent home, and it will argue that the broader armed conflict against Al Qaeda and its associated forces continues.