Q&A: Closing Guantanamo

Hearings have been halted at Guantanamo pending a review

US President Barack Obama has said that he will not be able to close the prison camp at Guantanamo Bay in Cuba by 22 January 2010, as he had previously announced he would.

The detention centre was set up in January 2002 by the Bush administration to hold prisoners it deemed "enemy combatants" - a term the Obama administration says will not be used to justify their continued detention.

Guantanamo once held some 775 inmates who were accused of links to al-Qaeda or the Taliban. Many have been freed or transferred to foreign governments, and three have been convicted by military tribunals, leaving 215 still in custody there.

On 13 November 2009, US Attorney General Eric Holder said the alleged mastermind of 9/11, Khalid Sheikh Mohammed, and four others would face a civilian trial in New York.

Why the delay on closure?

Because the problems have proved to be more complex than expected. There is opposition from some quarters in the US to the transfer of prisoners to a facility in the US itself (a prison in Illinois is being considered) and there are also legal problems. The most difficult has been what to do with those prisoners against whom there is no presentable evidence for a civilian or military trial, yet whose release is regarded as too dangerous. The US has been trying to get other countries to take them but with limited success.

The president said he hoped the camp would close some time in 2010 but did not set a new deadline.

How significant is the announcement about the 9/11 trial?

It is a major step along the path towards closing Guantanamo Bay. The fact that the trial will take place in New York City, close to the scene of the 9/11 attacks, will hugely raise its profile and importance. It also shows that President Obama is determined to shift the balance where possible from military tribunals to civilian courts.

Will a fair trial be possible?

The trial procedure will be the same as for any other civilian trial, though parts of it might be closed when secret information is being presented. The trial will be different from the military tribunal the defendants had faced. There will be a civilian jury which has to decide the issues unanimously and defence lawyers will have greater scope to challenge any confession that might have been based on waterboarding.

What might the penalty be if a guilty verdict is returned?

Mr Holder said he would seek the death penalty, which is allowed in a federal court.

Will military tribunals continue?

Yes, because, the task force looking into this says, the "realities of the battlefield" might prevent the normal collection of evidence. Soldiers could not, for example, be expected to read a captured prisoner his rights, something required in civilian cases. Intelligence sources might also have to be protected.

What remains to be decided?

One big problem is what to do with those prisoners in limbo. A system of indefinite detention is under consideration for them. This would probably face a challenge in the courts, so - to reduce the chances of a successful legal move - the administration is thinking of safeguards such as getting congressional approval and periodic reviews of any detentions.

Civil liberties groups say there should be no indefinite detention but that all cases should go to trial in a federal court.

What kinds of prisoners are left in Guantanamo?

They fall into five categories.

1. Those who are alleged to have broken US law. They will be tried in US federal courts as long as presentable evidence against them can be obtained.

2. Those who are said to have violated the laws of war. They will be tried by military tribunals, but the tribunals, set up under the Bush administration will be reformed (see below).

3. Those whose release has been ordered by courts. The president says the court orders will be followed.

4. Those who, it has been determined, can safely be released to other countries. The problem here has been in getting other countries to take them.

5. Those who cannot be prosecuted yet who are deemed to be a danger. A new legal system will be set up to authorise their continued detention.

Who will determine who is in which category?

The US attorney general is leading a review of all cases and is consulting the secretaries of state, defence and other departments.

How many are likely to be released and where would they go?

It is thought about 50 or so might face trial either in court or in tribunal - so far only 21 have actually been charged.

Fifty detainees have already been cleared for release. However, many come from countries with poor human rights records and so the Obama administration would need to find third countries willing to accept them.

Several European nations - including Portugal, France, Ireland, Sweden and Germany - have said they recognise the need to take some men who cannot return to their home countries because of the risk of mistreatment.

Albania, the Pacific island nation of Palau, and Bermuda, a UK overseas territory, are the only places to have so far accepted Guantanamo detainees, taking in members of China's Uighur ethnic minority.

Where would those not released be taken?

They would be transferred to facilities on the US mainland. Three military prisons - at Fort Leavenworth in Kansas, Camp Pendleton in California, and Charleston in South Carolina - are among some of the possible locations, according to administration officials.

There could well be local opposition wherever the detainees are transferred. Some critics have said dangerous suspects could be brought to the US and it possibly freed as a result of court challenges.

How would the military tribunals be modified?

The president said on 21 May that the old system was flawed. He said that in future, no statement would be allowed that was obtained by the use of cruel or inhuman treatment, that rules on allowing hearsay evidence (that is evidence reported from a third party) would be tightened up, and that the defendant would be allowed to choose his own lawyers.

The task force looking into this issue reported that it had broadly accepted the recommendations put forward earlier by the Senate Armed Forces Committee. These include the measures proposed by the president, so congressional acceptance is likely.

The new system will come under the close scrutiny of the US courts, and a case against it would probably go right up to the Supreme Court to test its constitutionality. President Obama said that military tribunals had been used in US history before when the country was at war, as it was now with al-Qaeda.

What is the current situation at Guantanamo?

The trials taking place under the military commissions system were suspended on 21 January for 120 days pending the review.

This halted the trials of the five suspected plotters of the 9/11 attacks, including Khalid Sheikh Mohammed, as well as a Canadian national, Omar Khadr, who is accused of killing a US soldier in Afghanistan.

Why were military commissions criticised?

They were set up in 2006 to try terror suspects under separate rules from regular civilian or military courts. They are made up of between five and 12 US military officers. A conviction requires two-thirds of the commission members to be in favour. For a death sentence, all 12 commission members must agree.

Hearsay evidence and evidence obtained under coercion is allowed if it is deemed to have "probative value". The interrogation technique of "waterboarding" or simulated drowning was not classified as torture by the Bush administration.

US Attorney General Eric Holder has said categorically that waterboarding is torture. All such methods have now been banned.

The Obama team has repeatedly questioned the legitimacy of the military commissions system.

How have the reports of Guantanamo's planned closure been received?

Some relatives of the 11 September victims are opposed to the camp's closure, believing that it is a secure location to try terrorism suspects.

Human rights groups have broadly welcomed the move. However, some activists and lawyers have expressed concern that it could take as long as a year to close Guantanamo, and that some form of military tribunal will continue.