Now its the war court the military commissions that the Bush administration created to hear war crimes cases at Guantánamo, which were reformed by Obama through legislation or nothing. And only two cases, both proposing military executions, are currently slated to go before the Guantánamo tribunals: those for the 9/11 attacks and for the October 2000 bombing of the U.S.S. Cole. To date, the war court has produced six convictions, four of them through guilty pleas in exchange for short sentences designed to get the detainees out of Guantánamo within a couple of years.
Still, in the Kafkaesque world of military detention, neither an acquittal at the war court nor even a completed sentence guarantees that a detainee gets to leave Guantánamo. Once convicted, a captive is separated from the other detainees to serve his sentence on a different cellblock. (Four are there today, only one serving life.) Once that sentence is over, as both the Bush and Obama administrations have outlined detention policy, the convict can then be returned to the general population at Guantánamo as an unprivileged enemy belligerent.
The doctrine has yet to be challenged. But if Ibrahim al Qosi, a 51-year-old Sudanese man convicted for working as a cook in an al Qaida compound in Kandahar, does not go home when his sentence expires this year, his lawyers are likely to turn to the civilian courts to seek a release order.
Guantánamo has largely faded from public attention. There is little reason to expect it to emerge as an issue in the upcoming presidential campaign season beyond the usual finger-pointing and slogans: Obama may blame Congress for cornering him into keeping the captives at Guantánamo rather than moving them somewhere else, and his opponents will no doubt argue that, by virtue of his wanting to close the facility in the first place, Obama is soft on terrorism. (My view is we ought to double it, Mitt Romney said about Guantánamo in a 2007 debate.)
Meanwhile, the detention center enters its 11th year on January 11. Guantánamo is arguably the most expensive prison camp on earth, with a staff of 1,850 U.S. troops and civilians managing a compound that contains 171 captives, at a cost of $800,000 a year per detainee. Of those 171 prisoners, just six are facing Pentagon tribunals that may start a year from now after pretrial hearings and discovery. Guantánamo today is the place that Obama cannot close.
Reprinted by permission of FOREIGN AFFAIRS. Copyright (2011) by the Council on Foreign Relations, Inc., www.ForeignAffairs.com