The Guantánamo Bay Detention Camp (GITMO) in Cuba, which houses high-value detainees captured by or transferred to the United States government during the War on Terror, has escaped the public eye ever since promises by the Obama administration to permanently close the facility faded away from the American news cycle. Yet, 39 detainees remain in custody, and it continues to be unclear what the US government intends to do with them. After 20 years of operation, the history and purpose of the camp, as well as its uncertain and complicated future, are yet to be untangled.

History of Guantánamo Bay Camp

The Guantánamo Bay camp was opened in 2002 in the context of the US-led Global War on Terror. The War on Terror has been primarily waged on Islamist terrorist groups such as al-Qaeda, the Taliban, and Islamic State (IS) and its affiliates. The War on Terror was itself a response to the attacks on 9/11 in 2001, perpetrated by al-Qaeda terrorists and facilitated through the support of other Islamist terrorist groups and various nations. 

Guantánamo Bay, a piece of land leased by Cuba to the United States since 1902, has housed 780 detainees since its inception. The facility started out with Camp X-Ray, where 20 detainees were first taken on January 11, 2002. The complex was established with the purpose of granting the US the ability to detain and interrogate “enemy combatants” outside of US legal jurisdiction. In other words, this allowed for the use of extraordinary renditions (the forcible capture and transfer of suspected enemy combatants on foreign soil by the US) and inhumane interrogation techniques that the US intelligence community denies are torture. 

Renditions and Controversies

The full list of detainees was not released by the US Department of Defense (DoD) until 2006, but the overwhelming majority of the detainees placed at Guantánamo have been from Middle Eastern countries. In many cases, the detainees rendered to the United States were transferred as part of deals with warlords and authoritarian governments, mostly in Pakistan and Afghanistan. The warlords and governments, of course, sent political enemies, with hopes of getting rid of them. The United States, in some cases, accepted the deals, disregarding the judicial renditions process entirely, which, normally, involves public and transparent deals between governments.

Allegations of Torture

Within Guantánamo Bay, allegations of torture and mistreatment are widespread and continue to come out year after year. Past practices have included sleep deprivation, waterboarding, beatings, controlled hypothermia, and forced confinement. While it is unclear whether those specific techniques are still used, tactics like force-feeding continue to be used on “noncompliant” detainees. Allegations of mistreatment have repeatedly been submitted by human rights groups, advocacy groups, and non-governmental organizations. The DoD has since provided some more transparency on the center to help its image and has improved conditions within the prisons, but very important questions remain about GITMO’s future.

Who Are the Remaining 39 Detainees?

There are currently 39 detainees at GITMO. Most of them live in conditions similar to those of maximum- or medium-capacity prisons in the United States, with treatment largely dependent upon the detainee’s level of cooperation. Of those 39 detainees, 27 are so-called “law-of-war” detainees, according to the US DoD, meaning that they are enemy combatants, also called unlawful combatants, who were deemed preferable to be captured and interrogated rather than killed. These are not prisoners of war (POWs), as they do not belong to a specific country. Those detainees were either captured by the United States military or by Allied militaries who then performed a transfer or rendition of the detainee to the United States. 

The decision to capture or acquire those enemy combatants was made given the potential value of the intelligence provided by those detainees and was informed given Article 3 of the Geneva Conventions, which provides an international legal basis for the detention of enemy combatants. Under the Geneva Conventions, however, those 27 detainees may not be charged or treated as prisoners, but rather captured enemy combatants, due to them not being considered Prisoners of War (POWs). Unlike POWs, enemy combatants do not belong to an established army or country. They, therefore, cannot receive usual protections granted by POW capture and prosecution.

For the remaining 12 detainees, the reality is a bit different. They have been charged with various crimes, including war crimes and terrorism against the United States. Ten of the twelve await trial, while two have already been convicted through the US military commission system. The two convictions are Ali Hamza Ahmad Suliman al-Bahlul (also known as Abu Anas al-Makki), a member of al-Qaeda from Yemen, and Majid Khan (also known as Yusif), captured in Pakistan and given to the CIA due to his connections with Khalid Sheikh Mohammed (KSM), the alleged mastermind of the 9/11 attacks. With that, all but 39 of the 780 detainees have been repatriated or resettled to other countries. 

After Biden’s electoral victory in 2020, the debate surrounding GITMO has been revived. The Trump administration had plans to expand the prison, but the Biden administration has stood firm on its wish to continue the Obama administration’s reforms, which improved conditions and sped up prosecutions and repatriations. This leaves the Biden administration with three main courses of action on the issue of Guantánamo Bay.

Policy Option 1: Status Quo

The first policy option, though a bit anticlimactic, would be to continue the current detention of the 27 remaining law-of-war detainees, interrogate and detain the two convicted al-Qaeda operatives, and engage in judicial proceedings for the 10 detainees awaiting trial. Unfortunately, for cited reasons of security and public image, no country has volunteered to repatriate or resettle the remaining suspected war criminals, terrorists, and high-value criminals, no matter if they are proven to be innocent

Since the creation of GITMO, US laws have changed, making it nearly impossible for the detainees to be transferred to the United States. Even then, bringing the detainees into the continental US would be highly unlikely, given that doing so would give them constitutional rights, which the detainees could then use to refuse any form of cooperation with US authorities. Moving the detainees to another country, whether their home country or not, would also prove risky, given that the detainees could themselves be in danger of persecution, or could pose a danger to others, including their loved ones. Some may even return to the battlefield.

Given all these facts, the status quo would seem like a likely option. Yet, this option would do nothing to improve the judicial treatment and rights of the detainees and their families and would continue to damage the credibility of the US military, intelligence agencies, the foreign policy establishment, and the criminal justice system. 

Policy Option 2: Improve Conditions in GITMO

Given that leaving the remaining detainees at GITMO is the most likely scenario, improvements may still be made to the conditions within the facilities. These conditions could advance the United States’ credibility on human rights, justice, and foreign policy, all without impairing the ability of the United States military and intelligence agencies to extract unique and actionable intelligence that thwarts attacks and guarantees peace and security at home and abroad. 

These improvements should include the halt of all violent interrogation techniques, whether physical or psychological. Rapport-building should be emphasized for interrogators and guards, given the ethical, legal, and practical concerns surrounding enhanced interrogation techniques (EITs).

Policy Option 3: Right of Return

As mentioned prior, the ability of the US to repatriate and resettle the remaining detainees at Guantánamo would be unlikely and could pose certain challenges to national and international security, as well as threats to the safety of the detainees and their families. Still, under US law, law-of-war detainees and those found to be innocent have the right to be released and returned to their country of origin or transferred to another country if they immigrate or seek asylum in such a country. 

Returning those detainees to their respective countries would adhere to international norms, conventions, and laws. Abiding by the right of return of the detainees would also signal the United States’ commitment to intelligence reform and criminal justice reform. This right of return, however, could only be possible after hostilities have ceased, if international law of war is followed. All three of these policies should be examined carefully and pursued depending on ever-changing circumstances. The Biden administration, despite promising to close GITMO, seems poised to maintain or expand the complex. President Biden, rather than spending money to improve the conditions at GITMO, has ordered the construction of a new courtroom for military commission proceedings.

The Need for Change

Regardless of the chosen policy, the United States government should take steps to ensure that the intelligence and judicial blunders of the War on Terror are neither continued nor repeated, as they were during the Bush, Obama, and Trump administrations. Whatever option the Biden administration chooses, it should improve the conditions inside the complex and should devise a transition for the DoD to close down the facility, ending indefinite detention, all the while providing the US intelligence community with viable means to collect, analyze, and disseminate intelligence in the full respect of the US Constitution.

Edited by Chase Kelliher

Joseph Bouchard

Originally from Quebec City, Joseph earned a BA in International Relations and Latin American Studies from the University of British Columbia. He is currently pursuing a Master's of International Affairs...