Kafka at Gitmo: Why 86 prisoners are cleared for release but might never get it

April 25, 2013

U.S. military guards watch detainees in a cell block at Camp 6 in the Guantanamo Bay detention center. (John Moore/Getty Images)

For the 86 prisoners, it's a plight almost Kafkaesque in its cruel absurdity: though the United States believes they should be released from their concrete cells at Guantanamo Bay, they have stayed in prison, often for years, not because of any crime they committed or immediate threat they pose, but because of diplomatic and political hurdles out of their control.

For the Obama administration, it's a maze with no obvious exits: it doesn't want to keep these prisoners locked up in Gitmo, which is politically and diplomatically costly, not to mention antithetical to Obama's stated desire to close the prison, but Congress has forbidden the prisoners from being transferred to U.S. soil. Though the administration had searched for foreign countries to which the detainees could be released, it appears to have since given up, having closed the office responsible for finding those countries.

All of this means that a number of Guantanamo's detainees are stuck in the facility even though the United States believes they should be released. Perhaps understandably, the detainees are not happy about this. Increasingly aware that the world has largely given up on them, they are starting to make noise.

The past three months have been hard ones at Guantanamo. A hunger strike that began in February now includes 93 of the camp's 166 detainees, fighting has broken out in the normally sedate Camp Six between inmates and guards, and tensions are reportedly worsening at the facility.

So who are the 86 detainees who have been cleared for transfer out of Guantanamo, and why are they still there? When the Obama administration came into office and took ownership of the camp, it announced its intention to close it. The administration had four ways to deal with the detainees: put them through civilian trials, put them through military tribunals, send them to a foreign country's prison system or, for a lucky few dozen, release them. The United States has since released 31 detainees to their home countries and another 40 to countries that were not their homelands, either because their home country would not accept them or because the United States believed the home country might subject them to torture or other abuses.

These remaining 86 detainees are the ones who, the United States believes, should be released to either their home or another country, but haven't been because of diplomatic and political hurdles. There are two theories as to why an individual detainee cleared for release might not get it. The first theory is that no country will accept him. It's not implausible; as an example of how tough it can be to find safe homes for the detainees, some Chinese Muslim dissidents held at Gitmo had to released to, of all places, Bermuda. But the second theory that's increasingly mentioned by critics: some administration officials might fear that a released detainee could later participate in terrorism, for which the administration might well be blamed.

Rep. Howard P. McKeon (R-Calif.) said in the New York Times that Congress recently gave the Pentagon the power to circumvent some of the restrictions that make it tough for them to release detainees to foreign countries, but that the Pentagon doesn't appear to have taken advantage of this.

"It’s just a political game," McKeon told the paper. "They like to point to this as our intransigence, but we have worked with them."

A recent study by a U.S. intelligence office estimated that between 16 and 27 percent of released Gitmo detainees have participated in terrorism since leaving the facility. Imagine the reaction if, hypothetically, the Boston Marathon bombings were discovered to have been conducted by detainees whom the Obama administration had cleared from Guantanamo and you can perhaps start to understand the White House's possible thinking.

To be clear, I'm not defending this position or arguing that it's correct. If this is indeed part of the administration's thinking, it raises the questions: How do you weigh that risk against the continued detention of 86 men who might otherwise go free? And isn't there something distasteful and unsettling about imprisoning people not because they've done anything wrong but because they might in the future?

It's exactly this sort of dilemma that President Obama was likely hoping to avoid when he pledged, at the start of his presidency, to close Guantanamo. And perhaps you can see some of what can make these decisions so difficult. Still, every day they go unresolved, dozens of men are waking, living, praying and now, in many cases, going hungry in concrete cells that, according to the administration, they don't need to be in any more. But there they are, and, unless something changes, there they will remain.

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