A Bleak Future For Gitmo Detainees, 10 Years Later
GUANTANAMO BAY, Cuba -- 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.

Military commissions

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 crime but 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.