The Guantanamo Dilemma

When President Obama recently signed an executive order formally establishing a periodic review system for inmates at the Pentagon’s detention camp at Guantanamo Bay in Cuba, critics and human rights activists accused him of backing away from his previously announced intention of closing the offshore prison for terrorism suspects, which has housed close to 800 prisoners over the years and still has more than 100. Instead, they argued, the order seems to continue the Bush Administration’s highly controversial policy of holding prisoners for indefinite periods without criminal charges or trials. 

But Obama’s apparent reversal was defended by some, including some of his usual conservative critics, as the right choice. Prisoners captured overseas and suspected of having ties to Al Qaeda, they contend, are too dangerous to be imprisoned on U.S. soil and tried in federal civilian courts. Additionally, they argue that such suspects don’t have the same rights as U.S. criminal suspects. They cite a federal appeals court’s 2010 ruling that upheld the U.S. government’s right to hold prisoners indefinitely as enemy combatants, so long as the government could show that they had some apparent links to Al Qaeda or another terrorist organization. And realistically, Obama had little choice, since Congress has refused to fund a shutdown. To the contrary, several U.S. Senators recently introduced legislation that essentially would make indefinite detention of terrorism suspects offshore a permanent U.S. policy. The bill also would require trials, when and if they occur, to be conducted by military commissions, unless the Pentagon agreed otherwise. 

All this is the latest twist in the peculiar, problematic saga of the controversial prison at Guantanamo, a unique chapter in U.S. legal history for which there may be no end in sight. It may be the first instance in which the U.S. government has established a prison just outside of U.S. borders to house prisoners that it has deemed too dangerous and/or loathsome to be brought here, and then held them for extended periods — in some cases, as long as nine years — without trial. Additionally, Guantanamo has become infamous as perhaps the first prison where the U.S. government officially approved treatment of prisoners that some say violated both U.S. and international laws against torture. Guantanamo’s critics, in fact, have argued that the prison was set up there so that there to avoid scrutiny of what went on inside its fences. Others say that unusual times call for unusual measures. They remind us that the prison at Guantanamo was created in the wake of the 2001 attacks on the World Trade Center and the Pentagon, the worst-ever act of terrorism on U.S. soil, in which thousands of people were killed. 

Holding prisoners for extended periods outside U.S. borders, even in wartime, is unusual. As this Smithsonian article details, during World War II about 400,000 Axis prisoners were brought to the U.S. and housed in 500 camps built mostly in the South and Midwest. (Many worked on farms and in canneries and mills and according to Traces, a historical organization that has documented the story, many of the Germans liked it here so much that they emigrated to the U.S. after the war. Many are remembered fondly by Americans who knew them. But according to Smithsonian, only about 15 percent were estimated to be hardcore believers in Nazism and dedicated enemies of the U.S. Most of those prisoners were ordinary German and Italian conscripts, perhaps relieved to be out of the line of fire. 

The detainees captured in Afghanistan after the September 11 attacks, in contrast, were destined for different treatment. In January 2002, according to this BBC News article, the first 20 detainees were airlifted Kandahar to Guantanamo under extremely high security, shackled and wearing orange jumpsuits and masks. They initially were confined in a section of the base called Camp X-Ray, where as this Time article describes, they were confined for the first few months in 6-foot-by-8-foot chain link cages with concrete floors and tin roofs, and portable toilets for sanitation. Those grim quarters were eventually replaced by Camp Delta, a sprawling compound that includes prison cells equipped with toilets and metal bunks, in addition to a hospital, a small library, and a soccer field, according to this article at (Here also is a detailed description of the facilities, including photos, from Human Rights Watch.) In 2006, the Pentagon opened a maximum security prison-within-a-prison called Camp 6, reportedly built by defense contractor Halliburton at a cost of $30 million, to house prisoners that the jailers wanted to keep under the tightest wraps. In 2006, this Miami Herald article reported that the Pentagon planned to build a $125 million courthouse for prisoners’ eventual military trials. 

Human rights activists frequently have accused authorities at Guantanamo of torturing prisoners there in violation of both U.S. and international law. While such allegations were dismissed by Bush Administration officials—“we do not torture,” the President himself insisted in 2005—the charges gained credence in 2007 when the American Civil Liberties Union used the U.S. Freedom of Information Act to obtain documents from a 2004 FBI internal inquiry. Bureau employees who had worked at Guantanamo reported observing 26 incidents of illegal mistreatment of prisoners. Some detainees allegedly were subjected to extreme heat or cold, while others were chained hand-and-foot to the floor in fetal position for 18 hours or more, so that they were forced to urinate and defecate upon themselves. Recently, a former Guantanamo inmate, Murat Kurnaz, told a German newspaper that he and other prisoners were given forced injections of anti-malarial drugs, even though they were not ill with malaria, which caused them to feel fatigued and their bodies to painfully swell. Here is a 2006 report on allegations of prisoner mistreatment by the New York-based Center for Constitutional Rights.

Defenders of Guantanamo, in contrast, have asserted that prisoners there are well-treated, and enjoy better living conditions and recreational opportunities than they had before their capture.  In this 2004 British newspaper article, for example, a teenage Afghan boy held at Guantanamo says that he was provided with good food and clothing, and had the opportunity to learn English during his 14 months there. From the University of California-Davis’s Center for Study of Human Rights in the Americas, here is an extensive collection of eyewitness testimony about life at Guantanamo from a variety of sources, including both prisoners and camp staff. 

The eventual fate of Guantanamo’s detainees has been another murky issue. The Bush Administration’s plans to put detainees on trial before boards of military officers was disrupted when the U.S. Supreme Court, in a 2004 case, Hamdan v. Rumsfeld, found that its procedures violated both military law and Article 3 of the Geneva Convention. Congress subsequently revised the system in 2006 to make it legal, and more recently passed the Military Commissions Act of 2009, which further refined it.  The commissions are now barred from utilizing evidence obtained by interrogators through torture. The former head of the Guantanamo prosecution team, Air Force Col. Morris Davis, resigned his position in 2007 rather than use confessions or other information that prisoners gave after being waterboarded. Here is the Pentagon’s official website for the military tribunals. In such military trials, defendants have fewer rights than in U.S. civilian courts, and evidence against them can more easily kept secret. 

In the first military trial at Guantanamo, Salim Hamdan, the former driver of Osama bin Laden who had challenged the commission system, was sentenced to 5 and a half years in prison for providing material support to Al Qaeda. That term was reduced to five months because of time he had spent at Guantanamo. Hamdan was allowed to return to his native Yemen to serve the remainder of his sentence, and was released in 2009. In February, another detainee, Noor Uthman Muhammed, was sentenced to 14 years in prison.

The Obama Administration is planning to try at least five more Guantanamo prisoners in miltary trials, according to this 2010 reportHow long Guantanamo’s prison will remain operating is anyone’s guess. The report describes 48 of the prisoners as “too dangerous to transfer but not feasible for prosecution.” Those captives will remain imprisoned indefinitely, though they can petition a federal court for release.


  1. Rajesh
    October 24, 2012, 1:46 pm

    Obama has taken a step in the right direction. There is no doubt that some of those in GITMO are likely to be innocent. The same measure needs to be taken in India with regards to the Naxalites who are fighting the state for equal rights – more specifically the equitable distribution of wealth. One has to agree that all forms of violence has a cause genuine or ifalse. With the naxalites, though, the cause is entirely legitimate thought their armed means are not and need to be condemned. This is because an overwhelming majority of Naxals are dalits – part of the 167 million people who have been traditionally treated as sub-human by Indian society and its social order called ‘caste system’ which continues even today. The state authorities including the administration and the para-military forces have neither provided them with equitability nor with justice. Sadly, many of the Dalits languishing as Naxals are innocent. They have been put behind bars because the police has to show that they do some work. But at the end of it all it is bound to be counterproductive. So what Obama is doing is a move that needs to be made in India with regards to the thousands of Dalit naxals who are behind bars and unlike their GITMO counterparts, they do no share any luxuries. Is PM Manmohan Singh watching what Obama is doing. He should and should also emulate him.