Why is the U.S. still keeping prisoners at Guantanamo Bay?

[pecksniff]

Gitmo has come up recently in connection with the Jackson confirmation hearings -- apparently Jackson, when a federal public defender, represented some Gitmo detainees.

The Guantanamo Bay detention camp never did make any sense -- at the time it was established, in 2002, the U.S. had a perfectly good system of federal jails and prisons to hold anyone accused of terrorism. But those were on the mainland, or in U.S. territories, and the W Admin wanted a prison neither in the U.S. nor out of it, on the theory that American legal safeguards such as habeas corpus would not apply there in the same way -- and the courts, to their shame, let them get away with that. Obama promised to shut it down but never did. Trump never even mentioned it, and neither has Biden.

 

[KeithD]

Gitmo has come up recently in connection with the Jackson confirmation hearings -- apparently Jackson, when a federal public defender, represented some Gitmo detainees.

The Guantanamo Bay detention camp never did make any sense -- at the time it was established, in 2002, the U.S. had a perfectly good system of federal jails and prisons to hold anyone accused of terrorism. But those were on the mainland, or in U.S. territories, and the W Admin wanted a prison neither in the U.S. nor out of it, on the theory that American legal safeguards such as habeas corpus would not apply there in the same way -- and the courts, to their shame, let them get away with that. Obama promised to shut it down but never did. Trump never even mentioned it, and neither has Biden.

You posted that it never made sense and then you posted why it made sense. A military facility prison outside the United States where nothing by military law need even pretended to be applied. Guantanamo wasn't the only such facility used.

 

[Tigersman]

The prisoners were prisoners of war, be them from ISIS, The Taliban or Al-Qaeda. None of them fell under Constitutional laws. They fal under military justice only. Hopefully they will all die while at Gitmo.

 

[pecksniff]

The prisoners were prisoners of war, be them from ISIS, The Taliban or Al-Qaeda. None of them fell under Constitutional laws. They fal under military justice only. Hopefully they will all die while at Gitmo.

POWs are supposed to be released when the war ends.

 

[KeithD]

Captured combatants not put in the field by sovereign nations are not protected by the Geneva Conventions in terms of length of detention. Article 3 of the current Geneva Convention prohibits torturing them (which is what has been controversial). It doesn't say they can't be imprisoned forever or wherever.

 

[pecksniff]

Yes, that was another dirty deed of the W Admin -- they classified the prisoners as "unlawful enemy combatants" so that they should have neither the rights of POWs under the Geneva Conventions, nor of criminal defendants under U.S. law. And the courts have let that stand too!

 

[KeithD]

Yes, that was another dirty deed of the W Admin -- they classified the prisoners as "unlawful enemy combatants" so that they should have neither the rights of POWs under the Geneva Conventions, nor of criminal defendants under U.S. law. And the courts have let that stand too!

Well, if a sovereign nation didn't claim them, they were not covered by the Geneva Conventions. What's your point? It's not some "dirty deed" of a given U.S. administration. People can't just self-declare they are soldiers covered by the conventions of war, create mayhem, and expect to be treated as prisoners of war when they aren't part of a conventionally declared war. International law is set up between sovereign nations, not insurgents or terrorists--or the Proud Boys or the Oathtakers.

 

[pecksniff]

Well, if a sovereign nation didn't claim them, they were not covered by the Geneva Conventions. What's your point? It's not some "dirty deed" of a given U.S. administration. People can't just self-declare they are soldiers covered by the conventions of war, create mayhem, and expect to be treated as prisoners of war when they aren't part of a conventionally declared war. International law is set up between sovereign nations, not insurgents or terrorists--or the Proud Boys or the Oathtakers.

Then they should be charged with crimes and tried under U.S. law, with all the constitutional guarantees of due process. Even the Proud Boys would get that.

 

[KeithD]

Then they should be charged with crimes and tried under U.S. law, with all the constitutional guarantees of due process.

That wasn't what you asked in your OP. You said there wasn't a rationale and then immediately showed that you knew there was one. Should and ought are different issues. In this case there are conflicting views in international norms.

 

[pecksniff]

Should and ought are different issues.

No, they're pretty much synonymous words.

 

[dmallord]

This is an excerpt from an article by John Belinger, Guantánamo Bay: Twenty Years Later, published in Lawfare

It might provide you with some insight as to why Gitmo remains active.

"Background on the Opening of Guantanamo

It has become conventional wisdom in the human rights community that, from day one, Guantanamo was a misguided effort to subvert the rule of law. In 2004, British Law Lord Johan Steyn famously called Guantanamo a “legal black hole.” President Obama called it a facility that “should never have been opened.” In the view of Guantanamo critics, suspected Taliban and al-Qaeda members detained in Afghanistan in the fall of 2002 should have been held in Afghanistan, interviewed by the FBI and then, if determined to have committed federal crimes, transferred to the United States for prosecution in the federal criminal justice system, or otherwise released.

As I have explained previously, however, in December 2001, U.S. military commanders opposed the continued detention of suspected Taliban and al-Qaeda members in Afghanistan because the temporary detention center at Kandahar airfield where many were being held was neither secure nor adequate as a detention and interrogation facility. The commanders asked policymakers in Washington to find a more permanent facility with more established infrastructure where detainees could be held and questioned. An interagency group considered various detention locations at military bases around the world and in the United States and ultimately concluded that Guantanamo Bay (which had previously been used by the Clinton administration to house more than 10,000 Cuban and Haitian refugees from 1991 to 1995) was the best option because it was a completely secure facility outside Afghanistan that was available immediately, convenient to the United States, relatively low-cost, and had sufficient supporting infrastructure for both the detainees and guard force. It was chosen in part because it was outside the United States and not subject to the jurisdiction of U.S. courts (as the Clinton administration had argued in response to legal challenges by Haitian refugees), but this was only one factor and not the determining factor.

Even in hindsight, it is not entirely clear what would have been a better option. Guantanamo did not work out well, but what would have been a better response to the requests from military commanders in Afghanistan? Should policy officials in Washington have overruled them and insisted that al-Qaeda and Taliban detainees all remain in Afghanistan, even though there were not adequate detention facilities and combat operations were ongoing? Or should all of the detainees have been moved to detention facilities in the United States? Both of these options were considered but rejected at the time. To be clear: These questions are not intended as a defense of Guantanamo but are simply a statement that it is still not clear what the best alternative would have been under the circumstances. In retrospect, it probably would have been better to have detained most of the detainees in Afghanistan for a longer period until more careful screenings could have been conducted before any detainees were transferred out of Afghanistan. But this would have required more infrastructure and the transfer of hundreds (if not thousands) of additional U.S. personnel (including FBI agents) into an area of continuing armed conflict. And it is not clear whether the U.S. should have then released non-Afghan detainees into Afghanistan or transferred them to their home countries (which would have raised human rights concerns and have been very difficult for the U.S. military while combat operations were ongoing).

It is also not clear what should have been done with the vast majority of Guantanamo detainees who could not be charged with federal crimes and prosecuted in U.S. federal courts because federal criminal laws did not apply extraterritorially in 2001 to reach most conduct by non-U.S. nationals in Afghanistan, except for knowing support for terrorist acts. Specifically, 18 U.S.C. § 2339B, which criminalizes material support for designated terrorist organizations, did not apply to actions by non-U.S. nationals in Afghanistan such as training in al-Qaeda training camps; the statute was later amended to cover such conduct. I do not doubt that many detainees should never have been sent to Guantanamo and posed no threat to the United States, but the fact that most detainees have “never been charged” by the U.S. (or any other country) with a crime does not, by itself, prove that the majority of detainees at Guantanamo were entirely innocent of wrongdoing. It may simply mean that U.S. (and other countries’) criminal laws in effect in 2001 did not reach their conduct in Afghanistan. Since 2002, the U.S. and other countries have significantly extended the reach of their counterterrorism laws to reach conduct outside their territories."

 

[KeithD]

Any legal "should" concerning insurgents and terrorists is just a projection of law if/when international law was to be regulated for insurgents and terrorists. Existing codified international law on warfare hasn't addressed insurgents and terrorists yet.

And before someone goes there, this is just stating the "is." This isn't me supporting having Guantanamo open and doing whatever it's been doing. But I'm not going to assert that this is all covered by existing codified international law, because it isn't. Citing legal scholars on it is just citing their opinions of what the laws should be codified to be in interpretation, not what they actually are set in stone.

 

[colddiesel]

Pecksmith might or might not be surprised by the fact that the USA is far from alone when it comes to putting undesired people beyond the law. My adopted country Australia for example is currently holding about 270 in offshore camps in Papua New Guinea and Nauru, in addition to a further 1100 elsewhere in Oz. These people have been in legal Limbo for about nine years and include women, children. All are refugees from wars denied that status because they had no visa, many from regimes that wanted to kill them! If you were locked up in PNG you would give your right arm to get into Guantanomo!

When criticizing the USA it is worth remembering that they on average over the last ten years have admitted 70,000 per annum (Oz about 11000) Europe on the whole and the West in general have also done reasonably well but no Nations come close to Pakistan and Iran, which are currently trying to deal with 2 million unwanted people in camps - each.

Perhaps Japan might offer an alternative. They lock up unwanted foreigners for years and if you want to be considered a refugee you have to leave the country first. Last year Japan with a population of 125 million admitted 27 (Twenty seven ) people. Guantanimo ain't great but the USA should get credit for what they do right.

And Pecksmith should also tell us what the people who have been released from Guantanimo have done. That alone justifies keeping the remainder locked up.

 

[JohnnySavage]

The above posts show the difficulties in dealing with the legalities of a non-state sponsored war.

The lesson learned is to not take prisoners.

 

[ll74]

It should be closed and burned to the ground.

 

[JohnnySavage]

what do you do with the detainees?

No one seems to want them. They are all Philip Nolan

 

[ll74]

what do you do with the detainees?

No one seems to want them. They are all Philip Nolan

Release them.....put them on a plane and drop them randomly over some country.

Honestly, the US deserves them more than any other country....we created the mess.

 

[oggbashan]

The real problem is that those held at GITMO were not proven to have done anything, The people held by Australia broke the law by attempting to enter Australia illegally. But at Gitmo? No proven charges for most, just suspicions that are not recognised in international law. Guilty until proven innocent?

 

[Champakian]

That's a tagline...

Visit any prison anywhere and everyone incarcerated will tell you, "I didn't do nothing..."

"I was just herding goats!"

(What goats? No one saw any...)

 

[JohnnySavage]

The real problem is that those held at GITMO were not proven to have done anything, The people held by Australia broke the law by attempting to enter Australia illegally. But at Gitmo? No proven charges for most, just suspicions that are not recognised in international law. Guilty until proven innocent?

Your opinion argues that they are (or may be) criminals. They aren't, necessarily. Or they could be POWs. But they aren't that either as they don't meet the legal definition of a POW.

Therein lies the legal quagmire.

 

[Champakian]

If nothing else, that AK47 was being used to help smuggle poppy product...

 

[oggbashan]

Your opinion argues that they are (or may be) criminals. They aren't, necessarily. Or they could be POWs. But they aren't that either as they don't meet the legal definition of a POW.

Therein lies the legal quagmire.

The UK has had a problem with GITMO and extraordinary rendition. Both are against our laws and any UK personnel involved faces prosecution.

 

[JohnnySavage]

The UK has had a problem with GITMO and extraordinary rendition. Both are against our laws and any UK personnel involved faces prosecution.

Should the... what, 37(?) detainees be released in London?

 

[LittleDixie]

The government found a legal loophole where it could violate their human rights and it used it. Complete perversion of justice.

Because they were not soldiers, they did not fall under the protection of the Geneva Convention regarding prisoners of war. And if they weren't in the US, then they did not fall under our code of justice. So, now they could just be kept in cages for the rest of their lives. That suited the people who ran the show, so they did it.

Those people should be tried in an American court of law and put in prison or let go.

 

[ll74]

That's a tagline...

Visit any prison anywhere and everyone incarcerated will tell you, "I didn't do nothing..."

"I was just herding goats!"

(What goats? No one saw any...)

They don't have to defend themselves against anything because they haven't even been accused of anything.