US President Barack Obama has reopened the debate about Guantanamo Bay, vowing another push to close the military detention center, describing it as "contrary to who we are" and a stain on the US’s international reputation.
His comments in late April put his legacy on the line once more, some four and a half years after his first pledge to close down the controversial prison in Cuba that houses 166 detainees captured abroad in the US wars in Iraq and Afghanistan.
That promise stalled when Obama’s plan to transfer inmates to high security prisons in the US and try some in federal courts was blocked by Congress in 2010.
Now 100 prisoners are on hunger strike at their seemingly indefinite detention, and 20 are being force fed, in the latest furore to dog Guantanamo.
And yet despite Obama repeating his wish to close the camp, the US President faces an uphill struggle to achieve this, experts say, doubting he will shut the prison in his second term.
As the controversy over the force-feeding thrusts Guantanamo back into the spotlight, human rights leaders have renewed their calls for the facility to shut.
"Many states don’t live up to their promises… but on this they [the US] have to do it, there’s no excuses, they have to do it - period," the United Nations special rapporteur on torture Juan Mendez told Al Jazeera.
However, experts question the US government’s commitment to closing Guantanamo in what would amount to a big political gamble by the current administration.
[Obama] doesn't want to be holding the political bag when one of the detainees returned to Yemen engages in a terrorist attack
"I don’t think there is the political will," said Vijay Padmanabhan, a lawyer for the State Department during the last Bush government and former chief counsel on Guantanamo.
"Coming up with any feasible plan to close the facility is very difficult to do," Padmanabhan said. "You’re holding a large number of people from countries with poor human rights records, who come from countries with severe security difficulties and we have a complete unwillingness to take anybody back in the United States for resettlement."
Guantanamo Bay was set up by the previous US President George W Bush in 2002 to house suspected "terrorists" seized post 9/11 in the so-called war on terror. Rights groups and legal experts have widely condemned the US for holding Guantanamo detainees for years without charge, most with no prospect of trial.
A pressing concern for Obama is what to do with the 86 detainees cleared for release, of which 56 are Yemeni. Transfers to the Arab country were halted after a failed attempt in 2010 to blow up a US passenger jet was linked to Yemen.
Any move to repatriate those cleared for release is littered with complications. As well as fears they could be tortured in their home countries, the US must prove Yemen is not a state sponsor of terrorism and could monitor former inmates to prevent them from returning to the fight and attacking the US or its interests abroad. In 2009 the Pentagon said 61 former detainees had returned to "terrorism".
Obama has been quick to blame partisan meddling in Congress for the lack of progress with Guantanamo, though some experts say the president could have pushed harder to transfer detainees.
In 2012, Congress loosened restrictions on transferring prisoners abroad if it was in the US’ "national security interests", yet Obama has chosen not to use the waiver provision, a sign his government is reluctant to risk such a move.
“The president recognises that transfers to Yemen are risky,” Padmanabhan said. “He doesn’t want to be holding the political bag when one of the detainees returned to Yemen engages in a terrorist attack.”
|Obama doesn't want to return detainees to Yemen despite the international outcry over Guantanamo prison [AFP]
Padmanabhan identifies three main problems for Washington on the issue of closing Guantanamo. The US government must decide whether it can risk sending men back to Yemen, it must find a way of prosecuting prisoners, and deal with those who are deemed dangerous but where there insufficient evidence for conviction.
Given the weight of opposition to closing Guantanamo on both sides of the political spectrum in Congress, moving detainees to the US for trial soon looks slim, experts argue. Trials in civilian courts could also compromise intelligence sources making evidence against suspects inadmissible, while some prisoners who allege they have been tortured could be freed, further complicating transfers. In which case, as one senior British human rights lawyer says, the US may have to “bite the bullet” and free all detainees it can’t try.
"They [the US] may have to pay the price for their overreaching, for blithely detaining them until the end of an unending war with Al Qaeda," the lawyer said. "The longer the distance from any trial... the harder it would be get a decent and fair trial, one capable at getting at the truth. What's happened to all the witnesses over the last 10, 12 years?"
According to a YouGov/Economist poll in April, most Americans still want Guantanamo. Some 49 percent thought the prison should stay open, while 22 percent were undecided, a similar response to the same poll four years ago when exactly half were in favour of keeping it open and 16percent weren’t sure.
One proponent of the prison, Gregory S McNeal, an associate professor of law at the Pepperdine University School of Law, said Guantanamo was the only place for detainees.
Once the choices become either release or prosecute, I think Congress will become a lot more willing to allow these people to be prosecuted in the United States if they think the only other alternative is for them to be outright released
"Congress has prohibited detainees from being transferred to the US and the Obama administration is unwilling to release individuals who have been cleared for transfer," he said.
"Closing Guantanamo will require the President to make difficult political choices, thus far he has not shown a willingness to do so," McNeal added.
“His administration has imposed a moratorium on transfers to Yemen, and his administration not Republicans, has determined almost 50 detainees cannot be tried or transferred,” he said.
So what options does Obama have?
In his most recent remarks on Guantanamo Obama continued “to chip away at it as un-American, illegal, and inhumane” in the hope of swaying public opinion, said Elspeth Van Veeren, a research fellow in international relations at the UK’s Sussex University.
Another option for the US president would be to declare an end to the "war on terror", removing part of the justification for holding detainees in Guantanamo, Van Veeren said.
Under a military order in 2001, detainees were defined as “enemy combatants” by the Bush government, which it said, allowed the detention of prisoners without trial until a war is declared over.
In any case, any decision to call an end to the war may be out of Obama’s control. It’s an "open question", said Padmanabhan, what the US courts will say about the legal validity of holding detainees in Guantanamo if NATO combat operations cease in Afghanistan at the end of 2014, as planned. Any end to the conflict, would make it harder, legally, to detain suspects in Guantanamo and could prompt Washington to reach a decision to either release or try detainees, said Padmanabhan.
“Once the choices become either release or prosecute, I think Congress will become a lot more willing to allow these people to be prosecuted in the United States if they think the only other alternative is for them to be outright released,” he said.
Source: Al Jazeera