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 intended.

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 210 still in custody there.

In mid-December 2009, it was announced that some prisoners would be transferred to a federal facility at Thomson, Illinois.

A month earlier, US Attorney General Eric Holder had 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?

There has been opposition from some quarters in the US to the transfer of prisoners to a facility in the US itself 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, although with limited success.

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

Who will be sent to the Thomson jail?

Those who will face either a criminal trial or a military tribunal will certainly go there. In addition it is likely that the jail will also hold the others who cannot either be tried or released.

Who will be left in Guantanamo?

The ones who have been cleared for release but who cannot be freed either because they would face torture in their home countries or who cannot find other countries willing to take them.

So when will Guantanamo be closed?

It is not clear. The US is having trouble in finding countries willing to take prisoners, so this could drag on for some months.

What about the 9/11 trial?

It shows that President Obama is determined to shift the balance where possible from military tribunals to civilian courts and in itself is a major step towards closing the camp. 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.

Will a fair trial be possible?

The 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 case 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?

The attorney general 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.

Will the military tribunals be modified?

The president said on 21 May that the old system was flawed. He said in future, no statement would be allowed that was obtained by the use of cruel or inhuman treatment; that rules on allowing hearsay 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 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.

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 9/11 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 about how long it is taking to close Guantanamo, and that some form of military tribunal or even indefinite detention will continue.