This is the first in a series of articles tracking the developments at the Guantánamo Bay Detention Camp, where the United States government has been holding detainees from foreign countries since shortly after the terrorist attacks of September 11, 2001.

Within hours of taking the oath of office, President Barack Obama issued an executive order temporarily suspending all prosecutions of the “unlawful enemy combatants” being held at the Guantánamo Bay Detention Camp. After approximately seven years of the Bush administration asserting the right to conduct military tribunals under a system which attempted to deny detainees access to the federal courts or even to the military justice system, President Obama has made clear his intention to close the camp and bring an end to Bush’s controversial program. What remains to be seen is what specific plan will be implemented by Obama to replace the current system, and what he will do with the prisoners who are still in custody.

Guantánamo Bay Naval Base – A Brief History

Although the United States does not have official diplomatic relations with the current Cuban government, the United States Navy has operated a base in Guantánamo Bay, Cuba, for over a century. It is the only United States military base located in a communist country, and was established long before Castro’s government came into power. The United States first began using Guantánamo Bay in 1898 during the Spanish-American War, and obtained a perpetual lease of the area in 1903 from an American citizen, Tomás Estrada Palma, when he became Cuba’s first president. The original lease payment was $2,000.00 in gold coins per year.

In 1934, the lease was renegotiated and made permanent unless the governments of the United States and Cuba mutually agreed to break it or if the United States abandoned the base. When Fidel Castro seized control of Cuba in 1959, his government denied the validity of the lease but inadvertently cashed the first lease payment it received. The United States government has treated the Cuban government’s acceptance of that payment as an official validation of the lease. However, the Cuban government asserts that the check was cashed in error and has refused to cash any lease payments since that time.

The Cuban government claims that the lease was obtained by force and is therefore illegal under international law. It further argues that the United States has broken the terms of the lease by allowing commercial use and other unauthorized uses of the property. The United States government disagrees, disregards the Cuban demands for the return of the property, and uses the naval station in Guantánamo Bay as a central part of its military operations in the Caribbean. The naval base provides support to the Navy and to the Coast Guard in providing regional security to the United States coastline, in combatting drug trafficking, and in the fight against terrorism.

As recently as January 28, 2009, Cuban Foreign Minister Felipe Perez demanded that the United States return control of Guantánamo Bay back to Cuba, saying, “We have always said that Cuba expects to recover this territory.” A similar demand was made by Cuban President Raul Castro a few days earlier. It is assumed that these demands will be ignored by President Obama, just as they have been ignored by his predecessors in the White House.

Guantánamo Bay Detention Camp

The naval base was assigned a new responsibility after the terrorist attacks of September 11, 2001 – that of incarcerating non-U.S. citizens accused of terrorist acts and making them stand trial before military tribunals. On January 11, 2002, the first military plane carrying 20 prisoners from Afghanistan landed at Guantánamo Bay, and a steady stream of detainees continued to arrive after that. Most of those seized were not captured by Americans, but were arrested by militias in Pakistan and Afghanistan and turned over to the United States military under allegations of being members of the Taliban or al-Qaeda. The methods of identifying those who would be incarcerated at the detention camp, and the interrogation techniques used on them (such as water boarding, long time standing, and the cold cell), have been highly controversial.

The Guantánamo detainee trials operated under procedures which are not permitted in the Unites States court systems nor in the regular military court systems. For example, detainees were denied access to much of the evidence against them, their choice of attorney was severely restricted, and the officers conducting the trials were allowed to consider secret evidence without providing the accused the right to cross-examine or challenge it.

Perhaps the most criticized aspect of the Guantánamo trials was the use of evidence obtained through “coercive techniques.” There has been much debate over where the line can be drawn between a harsh but legal interrogation and illegal torture. As critics have noted, anyone will confess to anything if they are subjected to a sufficient amount of torture. While torturous and extreme interrogation techniques have yielded confessions, the reliability of admissions made under such circumstances is doubtful. Nonetheless, supporters of the program claim that the interrogations yielded significant information which could not otherwise be obtained.

Out of the 779 prisoners who have been imprisoned in Guantánamo, over 500 of them were eventually released. Many were released without standing trial or ever being formally charged with a crime. Some whose releases have been authorized are still stuck in Guantánamo, because the government cannot return them to their home country but also refuses to release them into the U.S. Others are still incarcerated and waiting to go to trial on the allegations against them, if such trials ever occur.

While some released detainees have disappeared after their release or have returned to normal lives, others have drawn attention in a more negative way. The Pentagon claims that at least 18 former Guantánamo detainees have returned to terrorist activities, and many others are suspected of having joined or rejoined terrorist groups as well. A notable example is Said Ali al-Shihri, who was captured in Pakistan and incarcerated at the Guantánamo detention center for six years. In 2007, he was released to the Saudi government for rehabilitation. However, last week he reemerged publicly as a top deputy in a branch of al-Qaida in Yemen, a group which is believed to have been involved in multiple attacks on the U.S. Embassy in Yemen’s capital city of Sana.

Former detainees like Al-Shihri demonstrate the major difficulty facing the Obama administration in dealing with the current detainees in Guantánamo. Over the next few weeks, Obama is expected to issue new orders related to the handling of the detainees, and a major overhaul of the system for dealing with them is imminent. Future articles in this series will explore the battles which have been fought in the court system over the detainee situation, will track the new programs and policies proposed by the Obama administration, and will follow the upcoming trials over those detainees who remain in custody.

About the Author: William L. Pfeifer, Jr., is an attorney and a freelance writer.

  • February 2, 2009
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