By CNN's Pam Benson
Ten years after the arrival of the first prisoners captured by U.S. forces after the 9/11 terrorist attacks, the detention facility at Guantanamo Bay, Cuba, will likely be in business for many more years - perhaps decades - to come, analysts say.
For the 171 detainees still there, the future is bleak.
GITMO - as the detention facility is commonly known - would have been emptied two years ago under a proposal introduced by President Barack Obama. Just days after his 2009 inauguration, the president announced his plan to close the facility within a year and ordered a review to determine which detainees could be criminally prosecuted, which ones were safe to transfer to other countries, and what should be done with individuals who could not be tried but were too dangerous to transfer.
Congressional roadblocks spearheaded by Republicans stymied Obama’s efforts.
Lawmakers passed legislation that cut off funding for transferring any of the detainees to the United States for trial or for building and improving detention facilities, effectively axing a plan to acquire a prison in Illinois to house detainees.
The action pushed the president to change his plans to try some of the high-value prisoners–those tied to the 9/11 plot– in civilian courts. Instead, Obama resorted to military commissions to handle the cases from Guantanamo Bay.
Congressional restrictions have also made it difficult for the administration to transfer detainees to other countries. And recent legislation mandates all future foreign detainees be held in military detention, although it does provide the president with the authority to waive some provisions. In a signing statement, President Obama indicated he would "reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat."
Since its opening a decade ago, 779 individuals have passed through Guantanamo’s cells, according to the Defense Department.Of those still there, just seven detainees are designated to be tried before military commissions while another 29 are under review for prosecution. Forty-six will be held for indefinite detention. Approximately 60 detainees are cleared for transfer to another country if the proper security arrangements can be made. And 30 Yemeni nationals are in conditional detention because of the current security situation in Yemen. None of those detainees is expected to go anywhere anytime soon.
The debate rages over whether suspected foreign terrorists should be tried in federal civilian courts or as enemy combatants who should be prosecuted before military commissions.
The rules of evidence are far more lax in a military commission than they are for civilian trials or military courts-martial. Hearsay is allowed as is coerced, or involuntary, statements.
Many of the high-value detainees held by the CIA were subjected to harsh interrogation methods authorized by the Bush administration. The military also was allowed to use interrogation techniques beyond those contained in the Army Field Manual.
Marc Thiessen, a fellow at the American Enterprise Institute, argues terrorism is not a crimebut an act of war, and that’s why military commissions are necessary. "They still provide a fair trial, but they recognize the reality these people were captured in a war and not committing a crime."
Hina Shamsi from the American Civil Liberties Union disagrees.
"The use of torture is the main reason for the appalling and shocking fact that 10 years after 9/11 the alleged perpetrators of those attacks have not been brought to justice, despite the fact they've been held for many years," Shamsi said. "It is the main reason why federal courts were rejected in favor of military commissions that have lower evidentiary standards and are less fair than federal courts."
Current and former military lawyers say new rules that are created for any particular military commission make it harder to resolve issues that come up and will prolong the process.
"The problem with these military commissions, the physical location of Guantanamo, the uniqueness of the procedures, the evidentiary rules at Guantanamo…does not bode well for the end of Guantanamo military commissions in the foreseeable future,"Retired Marine Corps Judge Advocate Gary Solis said.
Bryan Broyles, Deputy Chief Defense Counsel for the Military Commissions, agreed that this will be a lengthy process.
"I think creating a new system out of whole cloth and expecting that to be quick and fair was fundamentally naive. That's where we are now," Broyles said.
He added that detainees have a sense of fatalism and do not believe a conviction or an acquittal will lead to their release.
Many civil liberties and human rights activists were outraged whenObama accepted the Bush administration position of ordering indefinite detentions for those individuals who have not been charged but are considered too dangerous to release or transfer elsewhere.
The ACLU’s Shamsi also takes exception to the notion there are no geographic or temporal limits to capturing suspected terrorists.
"If we accept the rationale that the entire world is our battlefield and our safety requires the detention of people who might be dangerous even if we can't prove they violated any law, it is hard to find any limit to who the government can imprison in the name of security and safety," Shamsi said.
But Thiessen believes terrorists are the enemy and can be captured wherever they may be and held as long as necessary.
"Until al Qaeda issues a statement with the words 'we surrender,' we have the right to continue to hold them as long as al Qaeda is at war with us," he said.
Solis, who teaches the law of war at Georgetown and George Washington University law schools, said the international Geneva Conventions, which regulate the conduct of war, allow for long-term detentions of those who pose an imminent threat to a nation’s security.
And although Broyles finds the idea of indefinite detention "intellectually honest," he says it "is a horrific thing if you have ever even glanced at the (U.S.) Constitution."
TRANSFERS TO OTHER COUNTRIES
Although the Obama administration determined that approximately half of the detainees could be transferred if appropriate security measures are worked out with the receiving nations, Congress placed restrictions on their transfer because of fear they will return to the battlefield.
The Director of National Intelligence released a study in December 2010 that showed a 25% recidivism rate among transferred detainees, that is, those who have re-engaged in terrorist or insurgent activities.
The difficulty posed by the congressional restrictions coupled with the problems of arranging the transfers means that those designated for transfer may be stuck at Guantanamo for years.
Shamsi, who directs the National Security Project at the ACLU, calls the prospects "bleak right now" for all of the individuals held at Guantanamo, slamming the facility as "a catastrophic failure on every front–legally, morally, ethically and (from) the perspective of security."
GITMO has been used as a recruiting tool for terrorists, Shamsi said, and "it has likely created far more terrorists than it has held."
But the AEI’s Marc Thiessen, rejects that suggestion.
"If you go through terrorist statements over the years, they never talk about it. What is a recruitment tool for terrorists is a successful terrorist attack," said Thiessen, the former Bush administration official and author of "Courting Disaster: How the CIA Kept America Safe and How Barack Obama is Inviting the Next Attack."
Although suspected terrorists are likely to be at Guantanamo for what Solis called a "long, long, long time," both Thiessen and Broyles say conditions have dramatically improved at the facility.Inmates are housed in air-conditioned cells, they have access to exercise machines and, for the most part, they are allowed to spend more time together.
Regardless of who wins the presidential election later this year, Thiessen believes Guantanamo will remain open indefinitely. "The big difference is whether we will use it as a place to bring new terrorist detainees or not," said Thiessen, suggesting a Republican president would resume capturing senior al Qaeda terrorists and bring them to Guantanamo for interrogation, something that has not happened in recent years.
The Obama administration policy has emphasized killing suspected terrorists through the use of CIA and military-operated armed unmanned aircraft, and no additional detainees have been taken to Guantanamo since Obama took office.