It is more than four years since Barack Obama promised to close Guantánamo. It is more than five years since Khalid Sheikh Mohammed, the self-proclaimed architect of the September 2001 attacks, and his four co-charged were first charged under the US military commissions system, a type of military court.
George W Bush set up the commissions in 2001 to deal with al-Qaeda and Taliban suspects captured after the 9/11 attacks. The US naval base in Guantánamo, Cuba, began taking prisoners in January 2002. Guantánamo now holds 166 inmates in three camps.
Obama stopped the 9/11 military case in 2008 when he sought to make good on an election pledge to close the prison within his first year in office. Obama tried to move the 9/11 case to a federal court in New York but the plan was dropped over security and cost concerns. Congress later banned the transfer of prisoners out of Guantánamo, blocking the president’s plan to close the camp.
In a major policy reversal, Obama restarted the military commissions but tweaked the system in 2009, notably blocking the use of evidence obtained by torture or cruel, inhuman or degrading treatment.
This had a bearing on the 9/11 case given that the accused were tortured using techniques including waterboarding, which simulates drowning, at CIA “black sites” after their capture in 2002 and 2003. Mohammed was waterboarded 183 times in one month. The court could use only evidence in FBI “clean team” interrogations at Guantánamo from September 2006. In May 2012 the five 9/11 accused were charged again under the revised military courts system.
Many of the remaining prisoners are stuck in a legal limbo. The US cleared 86 prisoners for release but they cannot be transferred due to the restrictions imposed by Congress.
On Monday the US justice department released the names of 46 prisoners categorised as “indefinite detainees” – suspects considered too dangerous to release but who cannot be prosecuted in a civilian or military court because of insufficient or tainted evidence.
The list also identified 34 candidates to face charges, but the prosecutor in the 9/11 case, army Brig Gen Mark Martins, told reporters in Guantánamo on Sunday that a smaller number would be prosecuted because the US federal court has disqualified certain terror charges in these cases.
A hunger strike by 104 prisoners at Guantánamo led Obama last month to renew efforts to close the prison. Describing it as “a symbol around the world for an America that flouts the rule of law” and citing the $150 million a year cost of incarcerating 166 prisoners, he called on Congress to lift the restrictions on prisoner transfers. On Monday, a Washington lawyer was appointed diplomatic envoy to manage the closure of the detention centre.
The House of Representatives voted last week for a defence Bill that would block the closure of the prison if passed by the Senate. The president must win over senators if his plan to close the Guantánamo camps is to succeed.
