Why was Guantanamo Bay set up?

The detention camps were set up in 2002 to house individuals (captured or handed over in Afghanistan and elsewhere) who were believed to be involved in terrorism or unlawful armed activity, primarily against the United States; many were claimed to be members of al-Quaeda or the Taliban. Around 800 inmates from 40 countries have been held there. Inmates were interrogated for ‘intelligence purposes’, and where sufficient evidence was obtained, it was intended that they would be tried on site.

Why is it so controversial?

Guantanamo Bay rapidly became synonymous with unlawful interrogation techniques, including sensory deprivation, sexual abuse, humiliation, and torture, in particular, through ‘waterboarding’. The Bush Government also argued that the detention centre was beyond the jurisdiction of US courts, that those held were not protected by the law of armed conflict (being for the most part ‘unlawful combatants’), and that human rights did not apply. Over 500 inmates have been held and then released without charges.

What are the trial proceedings, and are they legal?

The Bush Government established so-called ‘military commissions’ to try detainees. Many noted that these failed to meet basic fair trial requirements, lacking independence and impartiality, denying access to the evidence, refusing the participation of independent lawyers (except under stringent conditions), being closed to the public, and subject to no effective review. Senior British judges (Lord Steyn and Lord Bingham) and Lord Falconer (as Lord Chancellor, but speaking for the Government) all severely criticised Guantanamo.

The Bush administration decided that as ‘unlawful enemy combatants’, detainees were unprotected by international prisoner treatment standards, specifically the Geneva Convention. A 2006 ruling by the Supreme Court overturned this, thus establishing minimum-treatment standards, in particular, by reference to Common Article 3 of the 1949 Geneva Conventions.

Although their future operation is now in doubt, the tribunals established by the Bush Administration in 2006 are made up of between 5 and 12 armed forces officers with a qualified military judge. To convict the accused at least two-thirds of the commission members must vote in favour. In order to decide the death penalty – which can be sought if death resulted from the actions of the accused – all 12 members must vote in favour. Appeals lie to a Court of Military Commission Review and thereafter to the Supreme Court. Evidence obtained by torture is inadmissible, although ‘coercion’ is considered acceptable and ‘waterboarding’ was not defined as torture by the Bush administration.

Why is it so difficult to close?

There are several reasons. One of the most recent to emerge is the failure to compile comprehensive single files on every detainee, which will hamper case review. Another is finding countries willing to accept those released; while many will go home, others may not be ‘returnable’ to their countries of origin because of fear of persecution or torture (which itself may arise from simply having been detained, irrespective of the evidence).

What will America do with the suspects, and with suspects in the future?

There are a number of options. If there is sufficient evidence of criminal conduct, then the detainee may be prosecuted in a regular court in the United States, where the usual procedural protections will apply; any evidence obtained by torture, for example, will be excluded. It is reported that about 80 of the current inmates could be tried under terrorism charges. The US might also seek to detain without trial others considered to be a security risk, again in the US. New laws will be required and such forms of detention are generally inconsistent with constitutional principle. Fifty of the inmates have been cleared for release but cannot be returned to their home countries for fear of torture or persecution. A number of European countries are currently considering whether to take some of the prisoners in order to expedite closure of the camp.

The treatment of future ‘unlawful combatants’ and terrorism suspects will require serious consideration and, where the US is operating overseas, close cooperation with local governments on the basis of full respect for international humanitarian law and international human rights standards.

What has President Obama decided to do?

President Obama has always been opposed to Guantanamo Bay. He has ordered a moratorium on prosecutions for 120 days, and he has ordered that the centre be closed within a year. However, there are also major detention, interrogation and treatment problems to be dealt with in Afghanistan (at the prison on the US airbase at Bagram).

He has also ordered the intelligence community to follow the US Army Field Manual, which clarifies the interrogation techniques that are classified as torture and therefore prohibited.