Closing Guantánamo Bay : The Triumph of Politics over Law ?

Since the beginning of the ‘War on Terrorism’ the United States’ use of Guantánamo Bay for

the detention of suspected terrorists has been the focus of sustained and mostly critical

attention. Those detained there have won some rights and procedural entitlements over the

course of a long series of litigation (considered in Part II), including the right to habeas

corpus review before federal courts, but nine years after the first suspected terrorist detainee

arrived there, the prison remains open. Although the majority of suspected terrorist detainees

are held elsewhere (such as Bagram in Afghanistan), Guantánamo Bay has been the epicentre

of rights-based dissent against the ‘War on Terrorism’. The purpose of this essay is to

examine President Obama’s relationship with Guantánamo Bay from his pledge, on the first

day office, to close the prison as quickly as possible1 to his apparent acceptance—just two

years later—that, in all likelihood, it will remain open for quite some time yet.2

The note proceeds in three parts. Part I considers the reason for the use of Guantánamo Bay

for the purposes of counter-terrorist detention, focusing especially on its perceived

remoteness from the federal courts and normal processes of judicial review. Part II outlines in

brief the litigation that to all intents and purposes undid the assumed rationale for

Guantánamo Bay and made closure of the prison seem like a prudent legal—if not political—

next step. Part III then traces President Obama’s attempts to close the prison and highlights

the significant and seemingly insurmountable political opposition to that plan including,

especially, Congressional resistance. Overall the note attempts to highlight the story of

Guantánamo Bay since 2001 as a story that demonstrates the primacy of politics over law

when it comes to the detention of suspected terrorists in the ‘War on Terrorism’.

Part I Why Guantánamo Bay?

That the United States would have wanted to institute a system of internment or detention

without trial as part of its ‘War on Terrorism’ was unsurprising. In both conventional wars

1 Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, January 22, 2009, Executive Order No. 13,492, 74 Fed. 4897 Reg. (January 27, 2009); Review of Detention Policy Options, January 22, 2009, Executive Order No 13,493, 74 Fed. Ref. 4901 (January 27, 2009).2 Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force, March 7, 2001. Available at http://www.whitehouse.gov/sites/default/files/Executive_Order_on_Periodic_Review.pdf (March 11, 2011).

and counter-terrorist campaigns outside of the war paradigm the use of detention is

widespread.3 In the main such detention is intended to be a troop depletion strategy, reducing

the amount of human resources available to the ‘other side’. In the ‘War on Terrorism’,

however, this detention was not solely directed towards this objective. It was, instead,

concerned largely with preventing further attacks through gathering intelligence from

detainees. For those designing the US’ counter-terrorist detention system, it was a matter of

enormous importance to ensure that detainees could not ‘obstruct’ these efforts by appealing

to the courts for some kind of relief through habeas corpus or an analogous writ.4 Thus, the

US wanted to have a detention centre that was not on the ‘battlefield’ (loosely defined as that

concept is in the ‘War on Terrorism’) but was also beyond the reach of the federal judiciary.

They knew from the World War II case of Johnson v Eisentrager5 that non-US-citizens

captured and detained ‘abroad’ in relation to acts done ‘abroad’ were not considered to have

constitutional or statutory habeas corpus rights; thus extra-territorial detention identified

itself as the logical choice for the Bush Administration. Guantánamo Bay—a small area held

by the US under a perpetual lease that gave it full jurisdiction over it6 but which was strictly

speaking outside of the territory of the United States—was thus identified as the appropriate

location and detention there commenced.

This rationale is an important part of the Guantánamo Bay story for it formed the main plank

in the Administration’s attempts to prevent judicial scrutiny of activities there. Guantánamo

Bay was not the US, they argued. It was somewhere different; somewhere that the long arm

of domestic law could not reach. It was insulated from federal courts; a ‘legal black hole’.7 Of

course, to call Guantánamo Bay a ‘legal black hole’ suggests that it was a place devoid of

law. Nothing could be further from the truth, for in reality Guantánamo Bay was saturated in

law and in a legal rationale.8 It was a space carved out of law; identified on the basis of

Supreme Court precedent and then rhetorically presented as beyond law. Without this

3 Andrew Harding & John Hatchard (eds), Preventive Detention and Security Law: A Comparative Survey (1993, Dordrecht; Martinus Nijhoff); Stanislaw Frankowski. & Dinah Shelton (eds), Preventive Detention: A Comparative and International Law Perspective (1992, Dordrecht; Martinus Nijhoff).4 John Yoo, War by Other Means: An Insider’s View of the War on Terror (2006, New York; Atlantic Monthly Press), Chapter 6.5 339 US 763 (1950).6 Lease of Lands for Coaling and Naval Stations, 23 February 1903, US-Cuba, Article III T.S. No.418; Treaty Defining Relations with Cuba, 29May1934,US-Cuba, Art. III, 48 Stat.1683, T.S. No. 866.7 (Lord) Johan Steyn, “Guantánamo Bay: The Legal Black Hole” (2004) 53 International and Comparative Law Quarterly 1.8 Fleur Johns, “Guantanamo Bay and the Annihilation of the Exception” (2005) 16 European Journal of International Law 613.

understanding that Guantánamo Bay could not be scrutinised by the federal judiciary it would

not have been a sensible location for the kind of detention desired by the Bush

Administration. Thus, the main priority in moving Guantánamo Bay “towards legality”9

would have to be dismantling this legal rationale and showing clearly that the federal courts

did have jurisdiction there. That was achieved by means of three important cases: Rasul,10

Hamdan11 and Boumediene.12

Part II The US Supreme Court and the Diminishing Rationale for Guantánamo

Detention

In Rasul13 a number of Guantánamo detainees alleged that they had statutory and

constitutional rights of access to federal courts. In the US habeas corpus has both a statutory

and a constitutional form,14 and the decision in Johnson15 suggested the inaccessibility of

either to non-US-citizens captured and detained abroad. Although the Supreme Court did not

undo the constitutional analysis in Johnson and focussed instead on statutory considerations,

the decision was significant as the Court found that Guantánamo detainees were in fact

entitled to access federal courts through statutory habeas corpus. That suggested, as an initial

matter, that one pillar (based on the perceived scope of statutory habeas corpus) upon which

the Administration’s argument was constructed had fallen; however legislative pillars are

relatively easily rebuilt through the passage of further law. That, indeed, is what happened in

the light of Rasul.

It would be fair to say that at least some members of the US Congress were outraged at this

‘judicial interference’ in Guantánamo Bay and ‘national security’.16 Within a very short

period of time, the Detainee Treatment Act 200517 had been introduced, s. 1005(e) of which

was clearly directed towards undoing the Rasul decision. Section 1005(e) provided for

jurisdiction-stripping so that federal courts would not have any habeas corpus authority in

9 Fiona de Londras, “Guantánamo Bay: Towards Legality?” (2008) 71 Modern Law Review 36.10 Rasul v Bush 542 US 466 (2004).11 Hamdan v Rumsfeld 548 US 557 (2006).12 Boumediene v Bush 553 U.S. 723 (2008).13 Rasul v Bush 542 US 466 (2004).14 See generally William Duker, A Constitutional History of Habeas Corpus (1980, Westport, Conn.; Greenwood Press).15 Johnson v Eisentrager 339 US 763 (1950).16 See, for example, Speech of Senator Lindsey Graham in the Senate, 10 November 2005, Congressional Record, p. S12657.17 Detainee Treatment Act of 2005, Pub. L. No. 109-148, §§ 1001-1006 (2005).

relation to Guantánamo detainees. Such jurisdiction stripping provisions are quite standard in

US domestic law and do not present any constitutional difficulty per se,18 but the capacity of

the Detainee Treatment Act to fulfil Congress’ desired objective was frustrated by the case of

Hamdan.19 Hamdan had lodged his petition for habeas corpus in the Supreme Court before

the passage of the Detainee Treatment Act and, in spite of (sometimes quite imaginative)

attempts by the State and a number of amici to convince the Supreme Court that the

jurisdiction stripping provisions it contained were retrospective in their effect,20 the found that

it had jurisdiction over the petition (applying Rasul). In fact, it was Hamdan that introduced

some of the most significant procedural and rights-based changes in Guantánamo Bay

because of the Court’s finding that the ‘War on Terrorism’ constituted a non-international

armed conflict to which at least the minimum provisions of international humanitarian law,

including Common Article 3 of the Geneva Conventions, applied.21

Like Rasul, however, Hamdan was a case where the Supreme Court rooted its finding of

jurisdiction in statute, meaning that Congress could once again strip jurisdiction from the

Court. Indeed, this was done in the Military Commissions Act 2007 that made it clear that the

Supreme Court had no habeas corpus jurisdiction—retrospective, present or prospective—

over Guantánamo Bay detainees.22 By the time the joined cases of Boumediene and Al Odah

(now known simply as Boumediene23) came before the Court it was clear that the Supreme

Court had two options: either accept that it had no jurisdiction because it had been stripped by

statute and the constitutional habeas corpus provisions did not apply or find that, to at least

some extent, detainees in Guantánamo Bay were constitutional rights bearers.

It was the latter course that the Court chose in Boumediene with Justice Kennedy delivering

the opinion of the Court and finding that, as Guantánamo Bay is to all intends and purposes a

territory of the US giving it de facto sovereignty over the base, and as habeas corpus “must

not be subject to manipulation by those whose power it is designed to restrain”,24 at least

18 Gary McDowell, Curbing the Courts: The Constitution and the Limits of Judicial Power, (1998, Baton Rouge; Louisiana State University Press)19 Hamdan v Rumsfeld 548 US 557 (2006).20 See Fiona de Londras, “Guantánamo Bay: Towards Legality?” (2008) 71 Modern Law Review 36, p.p. 45-46.21 Whether the Supreme Court’s interpretation of international humanitarian law in this case is an accurate one is a question of some dispute, even where one recognises the desirability of rights-based protections for detainees as a matter of principle. See, for example, Fionnuala ní Aoláin, “Hamdan and Common Article 3: Did the Supreme Court Get it Right?” (2007) 91 Minnesota Law Review 1525.22 Military Commissions Act 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006).23 Boumediene v Bush 553 U.S. 723 (2008).24 Boumediene v Bush 553 U.S. 723, 755-756 (2008).

some constitutional rights applied to those detained there. Although the exact scope of those

rights was unclear, there was and is little question that constitutional habeas corpus is among

them.

The political system, including the President, was left with two options: constitutional habeas

corpus would be suspended (an option that does not seem to have been seriously

contemplated), or ways of exercising that constitutional right would have to be designed.

Either way it was clear that, in the absence of a suspension, the rationale for the use of

Guantánamo Bay’s continued use as a detention centre for suspected terrorists had been

fatally undermined by the Supreme Court. This, perhaps, made it easier for Barack Obama to

commit to closing Guantánamo Bay during the 2008 presidential campaign and, indeed, to

make one of the first acts of his presidency the signing of Executive Orders directed towards

closure within a year of his inauguration.25 Making the promise was relatively easy, but

events over the past two years have demonstrated how keeping that promise proved almost

insurmountably difficult.

Part III Obama’s Broken Promise or The Triumph of Politics

Although President Obama’s Guantánamo Orders were positive indicators of his desire to

bring counter-terrorist detention at the camp to an end, it is difficult to disagree with David

Jenkins’ description of them as “principled but cautiously pragmatic”.26 This is especially so

when one considers the open-ended and somewhat vague language used, by which the

President committed to ensure “[t]o the extent practicable, the prompt and appropriate

disposition of the individuals” detained there.27 In other words, while there was a firm

commitment to close Guantánamo Bay within one year of the Orders being issued,28 there

were no firm recommendations or decisions taken as to what would be done with those

detainees who were held there. It fell to the Guantánamo Bay Task Force, made up of

members of the Departments of Justice, Defence, State, and Homeland Security together with

representatives of the Office of the Director of National Intelligence and the Joint Chiefs of

25 Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, January 22, 2009, Executive Order No. 13,492, 74 Fed. 4897 Reg. (January 27, 2009); Review of Detention Policy Options, January 22, 2009, Executive Order No 13,493, 74 Fed. Ref. 4901 (January 27, 2009).26 David Jenkins, “The closure of Guantánamo Bay: What next for the detainees?” [2010] Public Law 46, p. 50.27 Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, January 22, 2009, Executive Order No. 13,492, 74 Fed. 4897 Reg. (January 27, 2009).28 Ibid, s. 3.

Staff to engage in a detainee-by-detainee review through which some avenues towards

closure could be identified.

In this review,29 released in January 2010, four categories of detainees were identified from

the 240 then in Guantánamo Bay. First were individuals who should be released and/or

transferred of whom there were 126; second were detainees who should be prosecuted, of

whom there were said to be 46; third were detainees who should be detained as a result of

their dangerousness but in relation to whom prosecutions were considered infeasible, of

whom there were 48; and finally there were 30 Yemeni detainees approved for ‘conditional’

transfer i.e. approved for transfer but not to Yemen given the volatile situation in the country.

And so, although the Report identifies four categories of detainees, there were really three:

those to be released or transferred, those to be prosecuted, and those to be detained without

trial. It is useful to consider the demise of the Guantánamo closure strategy by reference to

each of these groups individually.

Detainees eligible for transfer

One of the priorities of the Task Force was to identify those detainees who were eligible for

release or transfer in a manner “consistent with the national security and foreign policy

interests of the United States”.30 Before the Task Force began its work there were 59

individuals who had been approved for transfer or release but were still in detention,

primarily because repatriation to their countries of origin was inconsistent with the United

States’ policy on post-release treatment. In other words, there were concerns about their

possible subjection to unlawful treatment upon return and efforts were underway to transfer

them to third countries. Of the additional detainees that the Task Force considered ought to be

cleared for release or transfer, they determined that 39 could not be returned to their countries

of origin on the basis of the principle of non-refoulement. That, then, became the first

difficulty that President Obama had to negotiate: to seek agreement from third countries to

accept such individuals bearing in mind the difficulties, expense and perhaps controversy that

would possibly follow such agreement in the internal politics of the third countries

themselves. The United States’ concerns relating to refoulement should, however, be seen in

their proper context of state practice of the United States since 2001. Both the Bush and

29 Guantánamo Review Task Force, Final Report, January 22, 2010.30 Ibid, p. 15.

Obama administrations have transferred individuals into the hands of other states in apparent

breach of the principle of non-refoulement. This was done as a routine and central part of the

extraordinary rendition progtamme,31 but also in situations that appeared more benign. In

early 2011, for example, President Obama transferred Farhi Saeed Bin Mohammed to Algeria

in spite of his claims that this placed him at risk of torture and without regard to ongoing

proceeds by Mohammed attempting to restrain such a transfer.32 Following the transfer the

Department of Justice applied for the proceedings to be struck out on the basis of mootness.33

A further difficulty in relation to detainees cleared for transfer or release is the substantial

number of Yemenis who could not be returned to Yemen because of the volatility of the

political situation there and fears that they might become involved in further and future

terroristic activities. The potency of such a fear in the Task Force’s report appears at first

counter-intuitive; one might assume that only individuals considered not to pose a threat

would be transferred or released, but in fact that is not the case at all:

“[A] decision to approve a detainee for transfer does not reflect a decision that the

detainee poses no threat or no risk of recidivism. Rather, the decision reflects the best

predictive judgment of senior government officials…that any threat posed by the

detainee can be sufficiently mitigated through feasible and appropriate security

measures in the receiving country”34

The nature of the determination for release or transfer is, therefore, a somewhat curious one.

On the one hand the individuals concerned are not dangerous enough to be detained without

trial, have not done anything of which we are sufficiently certain (through admissible

evidence) to prosecute them for, but might still be ‘dangerous’ and in need of surveillance.

This is significant for it offers a particularly volatile spark to political opposition to closure as

preceded by release or transfer. It adds to the voices—including that of Associate Justice

31 See, for example, Margaret Satterthwaite, “Rendered Meaningless: Extraordinary Rendition and the Rule of Law” (2006-2007) 75 George Washington Law Review 1333; Kristen Boon, Aziz Huq & Douglas Lovelace, Extraordinary Rendition, Volume 108 of Terrorism: Commentary on Security Documents (2010, Oxford; Oxford University Press).32 Lyle Denniston, “One significant detainee case over?”, SCOTUSBLOG, January 6, 2011. Available at http://www.scotusblog.com/2011/01/one-detainee-case-over/ (March 17, 2011).33 Final Status Report and Application to Dismiss as Moot, Mohammed v Obama, Nos. 10-5034 & 10-5045, US Court of Appeals for the District of Columbia Circuit, January 6, 2011. Available at http://sblog.s3.amazonaws.com/wp-content/uploads/2011/01/Mohammed-dismissal-motion-1-6-111.pdf (March 17, 2011).34 Guantánamo Review Task Force, Final Report, January 22, 2010, p. 17.

Scalia35—that warn of recidivism and ‘return to hostilities’ and are powerful advocates of

continuing the practice of administrative detention without trial for the purposes of national

security. It also adds a level of credence to legislative attempts to obstruct transfer on the

basis of suspected inability of receiving states to properly or adequately survey transferred

detainees in order to ensure that they do not ‘return’ to violence (if, indeed, they were ever

involved in such violence in the first place).

Reflecting these kinds of concerns, as well as a desire to wrest control over Guantánamo Bay

policy out of the hands of the President and into the hands of the (now predominantly

Republican) Congress, the National Defense Authorization Act for Fiscal Year 201136

includes restrictions on public expenditure for the transfer of detainees from Guantánamo

Bay to third countries. Any such transfers are now to be subject to a certification process at

least 30 days prior to the transfer.37 The certificate, which is to be done by the Secretary of

Defense with the concurrence of the Secretary of State, should state that the country to which

the individual is to be transferred is not a designated state sponsor of terrorism, maintains

effective control over the detention facilities over which the individual is to be housed (if he

is to be detained), does not face a threat that is likely to substantially impact upon its capacity

to exercise control over the transferee, has agreed to take “effective steps” to make sure that

the transferee cannot undertake activity that would threaten the US (or its allies) in the future,

has taken satisfactory steps to prevent involvement in terrorist activities, and has agreed to

share certain information with the US.38 Thus, while transfers to third countries remain

possible it would be fair to say that this makes them more difficult, on top of the already

delicate political and diplomatic task of convincing a state to accept former detainees.

One striking feature of the recommendations for release or transfer is the absence of any real

consideration of transferring detainees into the US itself. The Task Force’s careful statement

that release or transfer does not necessarily equate to innocence or to wrongful detention has

the impact of reinforcing suspicions attached to those who would be released from

Guantánamo Bay, but in many ways the refusal to properly consider their transfer into the

mainland United States seems nonsensical from a security perspective. Firstly any argument

that these individuals would receive constitutional rights upon residence in the US (which is

35 Dissenting judgment, Scalia J. in Boumediene v Bush 553 U.S. 723 (2008).36 H.R. 6523, Pub.L. 111-383.37 Section 1033 (a)(1), H.R. 6523, the ‘Ike Skelton National Defense Authorization Act for Fiscal Year 2011’. 38 Section 1033 (b), H.R. 6523, the ‘Ike Skelton National Defense Authorization Act for Fiscal Year 2011’. 

long established as the case39) is made somewhat redundant by the fact that, following

Boumediene, they already have at least some constitutional rights. Secondly, arguments of

security are undermined by the fact that if these individuals were residing in the US they

could be subjected to surveillance by the US’ own police and security forces, rather than

relying on the security forces in other states. Thus, for example, the Yemenis who could not

be returned to Yemen because of the instability in that state might be effectively surveyed

within the US and, in that way, enjoy at least some liberty. It is undoubtedly the case that

resettlement in the mainland US was never seriously considered because of its political

impossibility. As we will see below, proposals to transfer individuals into high security

prison in the US have met with reactionary political opposition; one can only imagine the

consternation that would follow a suggestion that these individuals should be permitted to

live freely in the United States. As well as not considering this in any serious way in the Task

Force report, it is important to note that the Obama Administration has continued the Bush

Administration’s legal strategy of opposing attempts to secure court orders requiring the

government to transfer individuals into the mainland United States.40

Detainees eligible for trial

The Task Force concluded that 46 of the current detainees could be subjected to prosecution

on the basis of a calculation on whether “there was any basis to conclude that prosecution in

either federal court or a military commission was appropriate and potentially feasible”.41 The

prosecution recommendation must itself be unpacked to some extent to recognise two

important things. First, a recommendation for prosecution is not necessarily a

recommendation for prosecution within the ‘ordinary’ criminal justice system; the use of

military commissions was not foreclosed. The Task Force did recommend that, pursuant to

the protocol entitled ‘Determination of Guantánamo Cases Referred for Prosecution’42 there

ought to be a preference for federal prosecution, but as we will consider below, that

preference was later reversed at Presidential level. Secondly the assessment was not merely

one of whether prosecution was possible (presumably based on whether there was sufficient

39 INS v St. Cyr 533 US 289 (2001).40 Kiyemba v. Obama 555 F.3d 1022 (D.C. Cir. 2009).41 Guantánamo Review Task Force, Final Report, January 22, 2010, p. 19.42 “There is a presumption that, where feasible, referred cases will be prosecuted in an Article III court, in keeping with traditional principles of federal prosecution”, Protocol: Determination of Guantánamo Cases Referred for Prosecution, July 20, 2009, p. 1. Available at http://online.wsj.com/public/resources/documents/gitmoA072009.pdf (March 17, 2011).

evidence pointing towards commission of a recognised crime) but also whether it was

feasible.

On the one hand the recommendation that detainees should be prosecuted so that any further

detention would be based clearly on a sentence handed down by a court was welcome and

seems an integral part of any closure process. Once individuals have been prosecuted and if

they are convicted of a crime then they can be detained in a regular federal prison (subject to

political resistance) or, indeed, transferred to another jurisdiction to serve one’s sentence

there. Prosecutions also go at least some way towards trying to restore a degree of procedural

legitimacy to the legacy of Guantánamo Bay, although doubts would certainly prevail about

the integrity of any prosecutorial system that follows long periods of detention, potentially

involving unlawful interrogation methods resulting in tainted evidence. Even before

completion of the Task Force report, the Obama Administration had shown a clear preference

for prosecuting individuals in federal courts wherever possible. This was clear from the

announcement in November 2009 that Khalid Sheikh Mohammed, the alleged ‘mastermind’

of the 11 September 2001 attacks, and his alleged co-conspirators were to be prosecuted in

New York City. That announcement immediately ignited controversy with a substantial

number of commentators arguing that this would make the city vulnerable to further attack.

Speaking a week after the announcement, Attorney General Holder argued that this decision

was based solely on prosecutorial rationality: “I am a prosecutor, and as a prosecutor my top

priority was simply to select the venue where the government will have the greatest

opportunity to present the strongest case in the best forum”.43

So great was the political and popular outcry against trying Mohammed and his alleged co-

conspirators in New York City that this prosecutorial determination could stand up to politics

for only two months. In January 2010 the New York Times reported that the Obama

Administration was “considering other options” following Mayor Bloomberg’s withdrawal of

support for the plan, allegedly based primarily on the cost and logistical implications of

providing security for the trial.44 Any hopes that might have been held for the swift

prosecution of detainees in order to facilitate closure of Guantánamo Bay seemed to dissipate

as political resistance grew. That resistance culminated in the passage of a legislative bar on

43 E. Holder, Testimony to the Senate Judiciary Committee, 18 November 2009. Available at http://www.justice.gov/ag/testimony/2009/ag-testimony-091118.html (15 March 2011).44 S. Shane & B. Wieser, “US Drops Plan for a 9/11 Trial in New York City”, New York Times, p.A1, 29 January 2010.

transferring Guantánamo Bay detainees to the United States for any purpose, including trial.45

President Obama was, therefore, placed in a position where he effectively had no option but

to announce, in March 2011, that the military commissions suspended at the beginning of his

term of office would be recommenced, albeit with more rights-based procedures than had

previously been the case.46 Whether those convicted by the military commissions will be held

in Guantánamo Bay or elsewhere is not clear, but failed attempts to acquire detention

facilities for such detainees in the mainland United States—now blocked by the ban on any

expenditure associated with the transfer of detainees47—suggest that they will most likely be

tried and detained outside of the United States.

Detainees ineligible for transfer, release or trial

The third category of detainees identified by the Task Force—those ineligible for transfer,

release or trial—present, perhaps, the most difficulties for the Obama Administration. They

are, in the words of the Task Force report, detainees for whom “prosecution is not feasible”

because they were captured in active combat zones and no formal criminal investigations

were undertaken leading to a dearth of evidence against them, or because there was no

evidence of involvement in a particular terrorist plot although there was evidence of

membership or association with Al Qaeda more generally. Significantly the Task Force report

does not identify the inadmissibility of any evidence against individual detainees as a barrier

to prosecution; rather it expressly states that “the principal obstacles to prosecution…

typically did not stem from…concerns that the evidence against the detainee was tainted”,

although that may have been a concern in “some cases”.48 Thus the 48 detainees who fell into

this category were considered ineligible for transfer, release or prosecution and subject to

lawful detention because they “held a leadership or other specialized role within al-Qaida, the

Taliban, or associated forces”,49 they had “more extensive training or combat experience than

those approved for transfer”,50 they “expressly stated or otherwise exhibited an intent to

reengage in extremist activity upon release”,51 or they had “a history of engaging in extremist

45 Section 1032, H.R. 6523, the ‘Ike Skelton National Defense Authorization Act for Fiscal Year 2011’. 46 Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force, March 7, 2001. Available at http://www.whitehouse.gov/sites/default/files/Executive_Order_on_Periodic_Review.pdf (March 11, 2011).47 Ibid.48 Guantánamo Review Task Force, Final Report, January 22, 2010, p. 23.49 Ibid, p. 24.50 Ibid.51 Ibid.

activities or particularly strong ties (either directly or through family members) to extremist

organizations”.52

It should be clear from this that ineligibility for transfer, release or prosecution is quite

broadly construed, but the US has committed itself to the continued review of individual

cases to consider whether the detainee might become eligible for release, transfer, or trial in

the future.53 That notwithstanding, however, it is clear that part of Obama’s closure

conundrum in relation to Guantánamo Bay continues to be where these individuals will be

detained for the duration of their indefinite incarceration.

President Obama had expressed a desire to acquire the high security Thompson Correctional

Center in Illinois for the purpose of housing Guantánamo Bay detainees; a proposal that was

met with considerable outrage from some elected representatives. In 2009 provisions were

inserted into four spending bills in order to prevent the acquisition of this prison or any

expenditure required to close the base.54 Although none of the 2009 legislative attempts were

successful, as mentioned above the National Defense Authorization Act for Fiscal Year 2011

prohibits the use of any federal monies for the transfer of Guantánamo detainees into the

US.55 That Act also prohibits the use of federal funds for the acquisition or modification of

detention facilities to hold Guantánamo detainees. 56 Before these fiscal blocking measures

were successfully introduced, there had been attempts to ensure that any proposed transfer of

an individual from Guantánamo Bay to the mainland United States would be subject to a 120-

day clearing period during which Congress would be furnished with a report on security

risks, which it would then review. The proposal was to apply even in cases where a detainee

had been granted habeas corpus by a federal court. Although this did not make its way into

the final version of the Defense Authorization Act for Fiscal Year 2011, the fiscal obstacles

erected by that Act are sufficiently powerful to result in President Obama and his

Administration admitting that closure of the Guantánamo Bay facility is highly unlikely in

the near future.

52 Ibid.53 Ibid, p. 25. Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force, March 7, 2001. Available at http://www.whitehouse.gov/sites/default/files/Executive_Order_on_Periodic_Review.pdf (March 11, 2011).54 These provisions were inserted into spending and appropriations bills for Homeland Security, Defense, the State Department, and Commerce, Justice and Science. See Walter Alarkon, “Congress Uses Spending Bills to Halt Closing of Guantánamo Bay”, The Hill, 4 October 2009.55 Section 1032, H.R. 6523, the ‘Ike Skelton National Defense Authorization Act for Fiscal Year 2011’. 56 Section 1034, H.R. 6523, the ‘Ike Skelton National Defense Authorization Act for Fiscal Year 2011’. 

Conclusion

Guantánamo Bay has, in many ways, been a location where the battle between law and

politics that continues to play itself out in the United States’ ‘War on Terrorism’ has been in

sharp relief since the first suspected terrorist detainee arrived there. During the Bush

Administration a Democrat-dominated Congress attempted (and failed) to use fiscal

authorisation acts to close Guantánamo Bay57 and now that same kind of legislation is being

used to keep the prison open.

Politics, in this case, has triumphed over law to at least some extent for even though, in Joan

Fitzpatrick’s words, the Supreme Court has spoken ‘law to power’58 by insisting that

Guantánamo detainees would have some mechanism of challenging the lawfulness of their

detention in federal courts, thereby removing a primary rationale for the use of Guantánamo

Bay. Politics has resisted these liberalising efforts. Wrapped up in the rhetoric of ‘terrorists

on our streets’, and exploiting popular and genuinely felt fear about the gravity and

(un)controllability of the terrorist risk,59 politics is manifesting itself in both rhetoric and

legislation directed towards maintaining the illogical attempt to carve out a lawless space.

The great promise of Obama to close Guantánamo Bay was never going to be easy to keep

but this difficulty has been exacerbated and ambition frustrated to an extent that may not be

surmountable during his remaining time in the White House. Until law and politics are

aligned in usable a commitment to close Guantánamo Bay, the prison will remain open, not

because of the failure of law, but because of the failure of politics.

Dr Fiona de Londras

Lecturer, UCD School of Law

57 Manu Raju & Elana Schor, “Feinstein, Harkin aim to shut Guantánamo through Defense Authorization Bill” The Hill, June 21, 2007.58 Joan Fitzpatrick, “Speaking Law to Power: The War against Terrorism and Human Rights” (2003) 14 European Journal of International Law 241.59 On the role of popular fear in the ‘War on Terrorism’ see Fiona de Londras & Fergal F. Davis, “Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight” (2010) 30 Oxford Journal of Legal Studies 19, p.p. 36-38; Fiona de Londras, Detention in the War on Terror: Can Human Rights Fight Back? (2011, Cambridge; Cambridge University Press), Chapter 1.