Exactly ten years ago, the first group of detainees arrived at Guantanamo Bay, Cuba. In the wake of 9/11, Donald Rumsfeld referred to them as "the worst of the worst." Some of them were exposed to harsh interrogation techniques, such as waterboarding, the use of stress positions and sleep deprivation in the early days of their confinement. While some have been cleared of enemy combatant status and released, either to their home countries or to third states, some are still at "Gitmo." Why? How can a presumably law-abiding nation, like the United States, justify the indefinite detention of terrorist suspects?
The simple answer is that we are engaged in the so-called "global war on terror." According to this theory, constructed by the Bush administration, 9/11 was an act of war; the United States thus became involved in a global war against terrorism. The parameters of the war are truly global: the battlefield is found wherever the combatants themselves can be located, and the United States can strike in any location where it situates such a combatant. The United States can choose to kill an enemy combatant, and this option has been exercised through drone attacks in Pakistan, and most recently in Yemen, when al-Awlaki, a U.S. citizen suspected of terrorist activity was killed The United States can also choose to detain enemy combatants and bring them either to Guantanamo Bay, or to another location such as the Bagram prison in Afghanistan. Enemy combatants brought to Gitmo can be held until the end of hostility - thus, indefinitely (when does the global war on terror end? presumably never as terrorists will always exist throughout the world......). Because of clever human rights lawyers and their work, which has resulted in Supreme Court cases such as Hamdi, Hamdan and Boumediane, some detainees have successfully challenged their detention at Gitmo in our federal courts. Some of such detainees have been released. However, other detainees, because of newly passed federal laws, have not been able to challenge their detention. Some will be tried in the military commissions, an option inferior to federal court prosecutions but infinitely better than indefinite detention without any access to court. Some will be prosecuted in federal courts. Yet, some of those same detainees may never be released because, despite a court or commission ruling that a detainee is not an enemy combatant, the United States' position is that it does not have to release such detainees because they may nonetheless constitute a threat.
The Obama administration initially opposed this view, and in his first days in office, President Obama signed an executive order to close Guantanamo Bay. The President explored options, such as bringing the alleged terrorists to the United States for trial, but has faced political backlash and tremendous opposition because of security concerns. The current position of the Obama administration is that Gitmo is here to stay. In a recent law, signed by the President, transfers of detainees into the United States for trial are prohibited, while transfers of cleared prisoners to third countries are restricted. The same law, which has been debated hotly on other blogs by experts in national security law (see, e.g., www.opiniojuris.org), reaffirms the presidential authority to detain and hold, without trial, other suspected members of Al Qaeda, Taliban, or other associated forces (read the article here: http://www.cnn.com/2012/01/11/world/analysis-gitmo-ten-years/index.html?hpt=ju_t2). This position by the Obama administration is more than troubling, and it seriously tarnishes the image of the United States as a law-abiding citizen of the world. Let's hope for changes after the forthcoming presidential election, and for a world without Guantanamo Bay.