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Legal Hurdles Keep Scores of Prisoners Detained in Guantanamo

It’s been more than 12 years since the administration of President George W. Bush re-opened the doors of the detention camp at Guantanamo Bay in Cuba. Nearly 800 detainees have been held there since the onset of the so-called global war on terror. Human rights groups say the detentions are illegal, but the U.S. government says they’re necessary, despite promises by President Obama to close the camp.

It started in 2002, four months after the September 11 attacks that fueled the U.S.-led war on terror. The detainees were all Muslim; some were as young as 18. Of the 149 still held today, 38 are classified “detained indefinitely.”

“In the view of the administration - and it’s the previous administration - the detainees at Guantanamo were not combatants as defined in the Geneva Conventions, and therefore not entitled to prisoner of war status upon capture,” said Nicholas Rostow, who served as a former senior adviser to the U.S. government and as a special assistant to Presidents Ronald Reagan and George H.W. Bush.

In 1949, the Geneva Conventions established the rules of war, giving rights to uniformed soldiers of signatory countries who are captured on the battlefield.

“It was decided early on that if we captured detainees, we had to decide what their legal status would be. You get the full protections of the Geneva Conventions… if you are a country that has signed and ratified the Geneva Conventions,” said Cully Stimson, a senior legal fellow at the Heritage Foundation.

The United States treats these detainees as prisoners of war, with the understanding they will be returned to their home country when the war on terror ends. The United States does not see that end coming soon.

“It’s better than the alternative. We decided… that it’s better to detain somebody humanely and feed and clothe and water them and what not… than to kill them. Because the ultimate deprivation of liberty is killing somebody, whereas depriving somebody of the ability to fight on the battlefield is an inconvenience compared to death,” said Stimson.

That’s where things got tricky, said Stimson.

“The complicating factor was that the Taliban was the ruling party in Afghanistan when 9/11 happened. Only three countries recognized the Taliban as the legitimate ruling party of Afghanistan. We weren’t one of those three countries, naturally,” said Stimson.

While the U.S. government plans to hold some Guantanamo detainees indefinitely, for the rest, there are only limited options.

“These aren’t the most palatable people, and so it’s a little hard to find places that will take them. Some of them are awaiting trial or should be tried either by military commission or by civilian courts,” said Rostow.

President Obama said six years ago that he would close the doors at Guantanamo Bay. He has yet to make good on that promise, and in light of a recent prisoner exchange with the Taliban, that closing date may be even harder to predict.
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    Arash Arabasadi

    Arash Arabasadi is an award-winning multimedia journalist with a decade of experience shooting, producing, writing and editing. He has reported from conflicts in Iraq, Egypt, the Persian Gulf and Ukraine, as well as domestically in Ferguson, Missouri, and Baltimore, Maryland. Arash has also been a guest lecturer at Howard University, Hampton University, Georgetown University, and his alma mater, the University of North Carolina at Chapel Hill. He lives in Washington, D.C., with his wife Ashley and their two dogs.

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