The Problem that has Stumped Four Administrations  

The fate of Guantanamo Bay has been a topic addressed by four Administrations in the last two decades. Efforts have been made to close down the detention center which has held nearly 800 suspected terrorists and criminals. Guantanamo remains open first and foremost because the process for reviewing and trying detainees is extensive in order to ensure the individual does not represent a threat to U.S. safety. In addition, it is a polarizing issue mired in partisan politics which has prolonged and, at times, prevented the enforcement of other solutions for detainees. President Obama’s plan to send a number of detainees to the U.S received intense political backlash from Republican senators, and ultimately failed. 

President Bush established Military Commissions to try the first group of detainees brought to Guantanamo and accused of war crimes. During Bush’s Administration, approximately 500 detainees were transferred out of Guantanamo or released. Obama also approved the use of military trials; however, he also enforced Periodic Reviews as a way to re-evaluate the threat posed by Guantanamo detainees who were designated for indefinite detention. According to a 2015 report by IACHR, 8% of detainees were characterized as “fighters” for terrorist organizations.

Currently, detainees can be released from Guantanamo Bay through adjudication from military trials or Periodic Review Boards.

Military Trials

Of those detainees remaining in Guantanamo, the Defense Department reports that 10 are undergoing military commission proceedings, and two detainees have been convicted. Military Commissions are intended to “promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.” according to the Manual for Military Courts. 

Military trials are different to civilian courts in several ways:

• Military trials are not restricted by the Federal Rules of Evidence, extending the types of evidence which prosecutors can display in their testimonies;
• Military Commissions may allow the use of evidence obtained by inhuman and cruel treatment, potentially leading to questions about the credibility of the evidence;
• Military Commissions require more time to reach a conviction compared to civilian courts. It is rare for a Military Commission to reach a decision in fewer than five years. 

The military court and prison at Guantanamo has cost over $6 billion. The yearly cost of the military court and the prison at Guantanamo is $380 million. 

Periodic Reviews

The Periodic Review Board is composed of officials from the Department of Defense, Homeland Security, Justice, and State; Joint Staff, and director of national intelligence. The Board assesses the potential threat detainees might pose on the United States in order to make informed decisions on whether detainees should remain in Guantanamo Bay. 

The Periodic Board allows Detainees to participate in the process review. Detainees work with a military officer to help them through the process. In addition, detainees can request witnesses to offer information regarding whether the detainee should be kept in Guantanamo. If a detainee is found to be non-dangerous to the security of the US, they will be ready for transfer. If they are found to be dangerous they are again held indefinitely. 

Periodic Review gives hope for detainees designated for indefinite detention at Guantanamo. Many critique the Board’s decision making process. According to Benjamin R. Farley, a trial attorney and law-of-war counsel in the U.S. Department of Defense, Military Commissions Defense Organization, “The PRB’s present inability to render any decision other than for continued law-of-war detention is particularly pernicious in light of how the government invokes the PRB’s continued operation to minimize judicial scrutiny of the Guantanamo detention regime in federal habeas corpus proceedings”. 

Transfer of Detainees

As of April 26th 2022, 20 detainees have been approved for transfer. After a detainee has been deemed non-dangerous by the Periodic Review Board, they are confirmed for release. Should the situation permit, some are transferred back to their homeland. If transfer to homeland is not possible for detainees, due to safety reasons or other reasons, the U.S. works with other countries to release detainees. Legislative prohibitions on the transferring of detainees into the United States have prevented approved detainees from being transferred to the United States. The transfer of detainees to other countries, especially in Europe, has become difficult with the rise in anti-immigrant sentiment.