Ten years ago, the first detainees were transferred to the US navy base in Guantanamo Bay. President Barack Obama planned to shut the facility down one year after taking office. But it is still in operation.
Guantanamo was an ad hoc solution, says James Carafano from the Heritage Foundation. At the time, no suitable procedure for the prevailing circumstances was in place, the expert for defense and security policy said. The decisive question then was: how to deal with prisoners held in a war which had no country as an opponent? So the provisions for the treatment of these detainees did not apply. Action before a federal court, which Guantanamo critics demand, was not a viable option, Carafano said.
"No country in the world has ever had the belief that you could investigate war crimes and things on the battlefield and do that in the same way as you could in a normal legal situation," Carafano told Deutsche Welle.
For this reason, the government under President George W. Bush decided to transfer the detainees to Cuba. On January 11, 2002, the first 20 prisoners of the US "war on terror" were taken to the US naval base in Guantanamo Bay. There, it was assumed, they would not be subject to US jurisdiction and could be detained securely and questioned. The US Supreme Court has meanwhile ruled otherwise. The prisoners, it decided, could very well invoke the rights of the US constitution.
US court system sufficient
Critics point out that a camp for prisoners of war (POW) could be set up in Afghanistan or POW could be detained in the United States. Andrea Prasow from Human Rights Watch said the situation is just as clear today as it was 10 years ago.
"Detainees who are accused of committing crimes can be prosecuted," she said. "If they violated US law, they can be prosecuted in a US court. Some of them may have violated domestic Afghan law. In that case, they can be prosecuted there. If there isn't sufficient evidence, they should be released."
Federal courts were very much in the position to deal with terrorists, Prasow said. Hundreds of convictions proved this.
"The reality is US federal courts are not very defendant-friendly," she said. "They're certainly not very friendly to terrorism suspects. These people get very lengthy sentences and often serve them in really horrible facilities, in supermax facilities where they have very little contact with the outside world."
The poster child
Carafano also admits that the conditions of detention during the initial years were not acceptable. Instead of looking for alternatives, though, the US government tried to perfect the system of Guantanamo, that is improve the conditions for detainees.
"The problem for the United States was the politics went off in a completely different direction," Carafano said. "Guantanamo really became this poster child for everything." Any controversial debate on the war on terror would be pushed into the facility's shoes - even discussions about water boarding, which never occurred at Guantanamo, he said.
When President Barack Obama took office in 2009, he promised to shut Guantanamo down within one year's time. But that proved to be a difficult task. Some 800 prisoners were held in Guantanamo over the past decade.
Of the 171 prisoners still there, 89 have the authorization to be released, said Prasow. Most of them are from Yemen. But the unstable situation there and the large number of terrorists operating in Yemen led to a stop on transfers ever since Umar Farouk Abdulmutallab attempted to blow up a Detroit-bound airplane Christmas 2009. The men behind the attempted attack were based in Yemen.
Three dozen prisoners are supposed to be charged, including Khalid Sheikh Mohammed, one of the men behind the terrorist attacks of September 11. However, 46 prisoners are being held without charge for an indefinite period.
On December 31, 2011, President Obama signed the National Defense Authorization Act, which includes a provision allowing indefinite military detention without trial. In addition, US Congress previously passed a bill which made the transfer of prisoners to the United States impossible. This makes it more difficult to convince other countries to take in former Guantanamo detainees.
These laws and conditions make it practically impossible to shut down the facility at present. According to Prasow, no one was released from Guantanamo in 2011.
Ken Gude, an expert for national security at the Center for American Progress said the legal measures taken by Congress - and therefore the difficulties in closing Guantanamo - are solely politically motivated.
"They have constructed a legal barrier but it is entirely based on the political view that bringing Guantanamo detainees into the United States is somehow dangerous and it would somehow imperil the lives of American citizens, which I find frankly ridiculous," Gude said.
However, the State Department said earlier this week that the US government was continuing its efforts to close the facility. A total of 67 prisoners had been transferred during Obama's term. Four of them were convicted in either a military or federal court. President Obama had called for a periodic review of certain detainees in order to ensure that any prolonged detention was "carefully evaluated and justified", the State Department said. This did not "in any way" undercut the commitment to close Guantanamo.
Guantanamo will remain open
Prasow said she saw a small ray of light on the horizon in reference to the law that allowed prisoners to be released under such strict conditions that it was virtually impossible of late.
"The new law that was signed has a slight change to it: it provides for a national security waiver," Prasow said. "So if the Secretary of Defense can't sign a certification with respect to certain detainees, he can waive certain provisions. He can say that receiving countries have taken the steps necessary to substantially mitigate the risk that a detainee going back to their country might pose harm to the US."
Prasow said this change in the language led her to "firmly believe" that the US can transfer detainees out of Guantanamo.
But all experts agree that it is unlikely that Guantanamo be completely shut down.
"Regardless of who the next president is, four years from now, at the end of the next presidential administration, there will still be a detention facility there and they'll still have combatants of the war on terrorism there," Carafano said.
Author: Christina Bergmann, Washington, DC / sac
Editor: Rob Mudge