Analysis: The Fate of Guantanamo's Inmates

Council on Foreign Relations

July 10, 2007
Prepared by: Lionel Beehner

The treatment of terrorist suspects at the U.S. detention center in Guantanamo Bay, Cuba, is at the center of one of Washington’s greatest post-9/11 foreign policy challenges: How to handle potentially dangerous detainees. The issue has enormous import in a number of areas—government checks and balances, the role of international humanitarian law, America’s damaged image in the world—and will likely reenter the public debate after the Supreme Court reversed course (TIME) to hear previous claims from detainees. James Jay Carafano of the Heritage Foundation and Gabor Rona of Human Rights First debate the diplomatic, legal, and political merits of closing the Guantanamo Bay detention center in an Online Debate.

The inmates are pressing for the right of habeas corpus, as NPR reports, to challenge their detention before U.S. federal courts. Last fall Congress voted to strip the detainees of their habeas rights. The High Court’s later decision to reverse itself and review these cases—that is, to decide whether it is constitutional to detain them indefinitely without charge or legal counsel—has some human rights advocates hopeful. But Brookings’ Benjamin Wittes warns that without clearer legal procedures in place, these detainees may just be shifted to some other detention facility overseas with even less scrutiny than Guantanamo (i.e. naval vessels in international waters or CIA-run “black” prisons). Moreover, he writes, “making legal detentions too legally cumbersome creates an incentive not to capture the enemy but to kill him.”

Even if their habeas petitions are heard, these detainees must prove they are not “unlawful enemy combatants”—belligerents not entitled to legal protections under international law—before a Combatant Status Review Tribunal, or CSRT.

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