There are four main tenets to the president’s plan that address the different statuses of the remaining 91 prisoners currently at Gitmo. The first calls for moving out the 35 men who've already been cleared for transfer. Most are from Yemen and will need to find a third country to accept them — as there is currently a war raging in their home country. Second, the men who have not yet been cleared for release but who have not been charged with any crime are undergoing a review process. There are 46 men in that category. The plan would seek to speed up the pace of these reviews, aiming to complete all initial reviews by the fall of 2016. Third, the plan calls for identifying prisoners eligible for prosecution. Finally — and most controversially — the Obama administration proposes to work with Congress to move a number of prisoners, estimated to be between 30 and 60 men, to the U.S. mainland. No preferred site to house prisoners has been named, but 13 locations are up for consideration, including existing prison facilities and locations on military bases. By keeping Guantánamo prisoners on the U.S. mainland, the Defense Department estimates that it would save between $65 million to $85 million a year. Gitmo costs roughly $400 million per year to run, which breaks down to an estimated $4.4 million per prisoner per year.
If you haven’t got evidence against these men after 15 years, how are you going to get it?
Some of them are, and some of them aren't. Prisoners first arrived at Guantánamo on January 11, 2002. In total, some 780 men have been detained there, with the largest numbers being citizens of Afghanistan, Saudi Arabia, and Yemen. U.S. forces captured very few of these prisoners. Many were captured by Afghan and Pakistani forces. Since 2002, the overwhelming majority of the prisoners have now been sent back to their home countries or transferred to a third country. Approximately 57 countries have taken former prisoners. Lawyers for these former detainees say that the majority of them are living peaceful lives in their countries or in places where they have been re-settled. "In my experience, my clients…want to simply move on with their lives. Their only cause is to regain all that they've lost," federal public defender Carlos Warner told Refinery29. Approximately 6% of the men who were released during Obama's time in office are believed to have "re-engaged" in terror related activities, according to a report by the Director of National Intelligence. The percentage of inmates released under the Bush administration who returned to the battlefield is higher. However, many of those men have been recaptured or killed. This is still extremely low compared to the nation’s judicial system, where three in four prisoners tried in the U.S. have been re-arrested within five years of their release, according to the Bureau of Justice Statistics.
Gitmo costs roughly $400 million per year to run, which breaks down to an estimated $4.4 million per prisoner per year.
Critics of the president's plan say that moving prisoners to the United States does not "close Guantánamo." Indefinite detention without trial is a violation of U.S. obligations under international law, and continuing that practice in another location just creates what critics call "Guantánamo North." "If you haven’t got evidence against these men after 15 years, how are you going to get it?" former prisoner Moazzam Begg told Refinery29, noting that torture was used in many of the interrogations conducted on Guantánamo prisoners. The men should be released in accordance with the "normal" rule of law, Begg added. Begg's thoughts have been echoed by many of the prisoners’ lawyers. "We oppose bringing Guantánamo into the United States," Wells Dixon, a senior staff attorney at the Center for Constitutional Rights, told Refinery29. "The only conceivable advantage to transferring men to the U.S. is that they will indisputably have full constitutional rights, which will hasten the demise of the military commission system and limit the duration of indefinite detention."
Currently, 10 prisoners are in various stages of military commission hearings. Five of these men are accused of various crimes during the September 11, 2001 attacks that killed nearly 3,000 people. They have yet to enter pleas, meaning that their cases are still in pre-trial hearings. Some estimates project that the actual trials might not start until 2020, while others suggest dates even beyond that. The hearings have hit several snags in part because the trials are working in unchartered legal territory. The grievances of the defense counsel also make for a long list; key among them — government secrecy given the various levels of classification More men have died at Guantánamo — nine — than have been convicted by the courts (eight). And most of the convictions have been vacated in part or in full during another review. By contrast, U.S. federal courts have convicted terrorists like Boston Marathon bomber Dzhokhar Tsarnaev and Unabomber Ted Kaczynski, who are currently being held in maximum-security prisons on U.S. soil. "Supermax" prisoners spend some 23 hours a day in solitary confinement. Since September 11, 2001, there have been nearly 500 convictions in federal court on terrorism-related charges. "This isn't Minority Report," Warner said, referencing the film that uses technology to convict people before they have actually committed a crime. "Prosecute men for what they have done. America does not detain men for what they might do." Martin Reardon, a senior vice president at the Soufan Group, an intelligence and risk consultancy, told Refinery29 he had similar thoughts. "For those detainees who can be prosecuted, either by military commission or in the civilian courts, bring the full weight of our justice system down on them. But after 14 years of incarceration, the vast majority of the remaining detainees face no charges whatsoever, yet are somehow deemed 'too dangerous to release.' That’s a dangerous precedent no matter where they’re kept," Reardon said.
More men have died at Guantánamo than have been convicted by the courts.
It's not quite clear. The Obama administration has floated the idea that the president could use executive action to close the prison unilaterally, without approval from Congress. Whether he has the legal authority to do that, however, remains the subject of much debate. In November, U.S. Attorney General Loretta Lynch told members of the House Judiciary Committee that the law currently does not allow the transfer of Guantánamo Bay detainees to the mainland. However, former White House counsel Gregory Craig has argued differently, writing in The Washington Post, "Under Article II of the Constitution, the president has the exclusive authority to determine the facilities in which military detainees are held. Obama has the authority to move forward and he should use it." But it should be the rule of law and adherence to the Constitution that determine the decision to close Guantánamo, Reardon said. "The argument to close Guantánamo Bay’s detention facility shouldn’t revolve around the financial costs, possible national security implications, international opinion, or even its supposed use as a recruiting mechanism for terrorist organizations as much as the question of due process," Reardon said. "America is a country of laws, and by accepting indefinite custody without charge or trial — even for those suspected of having terrorist ties — we walk down a slippery slope that can’t be morally defended."