The Obama administration appears to be lost on the issue of Guantanamo. The decision to close this detention facility does not seem to be any closer to implementation, largely due to opposition in the Congress.There are now 166 prisoners remaining in Gitmo.
A few of them are the so called High Value Detainees who were brought there after having been interrogated under torture in secret CIA-prisons in Poland, Romania and other places. The problem in bringing them to trial is that the defense lawyers certainly will demand that the charges cannot be accepted precisely because of the torture during the investigation.
Another group of prisoners are those whom have been “cleared” but could not be let free because there was nowhere for them to go as they had been stigmatized in the come to the US and the willingness in other countries to receive them has run thin.
Then there are about four dozen prisoners deemed as “dangerous” but could not be prosecuted. They have demonstrated their anti-American views during the interrogations and are seen as dangerous. Several of them come from Yemen which is a further complication, or course. However, no crime has been proven in these cases.
Is it legal to keep people deprived of their liberty on this basis?
US authorities argue that there is a war against al Qaeda and that the prisoners are to be seen as captured enemies in that war and therefore the Third Geneva Convention would apply – they could be seen as Prisoners of War whom could be kept until the war is over.
However, it could definitely be questioned whether the US combat against terrorism is indeed a war in the sense of international humanitarian law. This is not a battle against any enemy state but against individuals spread out over a number of countries – this is different.
Also, this point is theoretical because the US authorities do not respect the rules which would apply in war time. They do not respect Geneva Convention on the treatment of Prisoners of War. They never did – and still don’t, even if the material conditions for the detainees on Guantanamo have improved since 2002.
The treaty on POW:s is very precise. The basic idea is that the prisoners should be treated in a humane manner. It certainly, does not allow for torture or other cruel and inhuman treatment. The detainees are only required to give information about their identity. They should have the right to correspond with their family and have several other rights. None of these requirements have been respected.
The truth is that Guantanamo is a human rights scandal. If there is evidence about criminal activities against some of the detainees, they should be brought to a proper trial. Others must be freed. Suspicions that they might turn against US interests in the future, is not a legally accepted reason to keep them locked up.