GUANTANAMO BAY NAVAL BASE, Cuba – The U.S. detention center at Guantanamo Bay, Cuba, appears to be at another turning point.
It was opened under President George W. Bush to hold and interrogate people suspected of links to al-Qaida and the Taliban in the wake of the Sept. 11, 2001, terrorist attacks. President Barack Obama deemed it an unnecessary stain on the country's global image and sought to shut it down. He couldn't because his administration did not want to release some of the men and Congress barred the transfer of any prisoner to U.S. facilities. Obama reduced the population from 242 to 41 before leaving office. Now, President Donald Trump's administration is expressing an interest in not just keeping it open but in resuming the broader detention and interrogation policies that made the detention center a focus of global protest over human rights.
Here is a look at where things stand at the U.S. base and what may happen under Trump.
WHO IS LEFT AT GUANTANAMO
There are 41 men held in two camps. There are believed to be 15 men designated "high-value detainees" in Camp 7, but the military will not officially disclose the population of the unit or much else about the facility. Even its location on the 45-square-mile (116 square kilometer) base is classified top secret. That would leave 26 in Camp 6, where most prisoners live in communal pods that allow them to eat, pray and exercise together for much of the day.
The remaining prisoners include 10 who are in some stage of the military commissions, a hybrid of civilian and military court set up to prosecute men at Guantanamo for war crimes. One, an aide to Osama bin Laden, was convicted and is serving a life sentence. Two are awaiting sentences as part of plea deals. The other seven are in the pre-trial stage, including five men charged as conspirators in the Sept. 11, 2001, attack.
There are five prisoners who were cleared for release under the Obama administration but stayed behind because the U.S. did not complete transfer agreements with other countries in time(asterisk).
The U.S. says it is authorized to hold the rest without charge under international laws of war due to an authorization for military force adopted by Congress after the Sept. 11 attacks.
TRUMP'S PLANS FOR GUANTANAMO
At this point, the new administration's plans for Guantanamo are unclear.
During the campaign, Trump said he would keep the detention center open and "load it up with some bad dudes." A draft executive order, obtained by The Associated Press and other news organizations, said the administration would keep the detention facilities on the base open "as a critical tool in the fight against international radical Islamist groups." The draft says the U.S. would suspend any further transfers out of Guantanamo pending a review of whether they are in the national security interests of the U.S. It indicates there might be changes in the military commissions as well, telling the secretary of defense to work with the attorney general and director of national intelligence to come up with recommendations "for the swift and just trial and punishment of unlawful enemy combatants."
But the White House said the draft order was not official and it's not yet publicly known what the Trump administration will propose and when. White House press secretary Sean Spicer said Monday only that there would be "further action" on Guantanamo but gave no details.
CARRYING OUT THE TRUMP ADMINISTRATION PLANS
From a logistical standpoint, it would not be hard to again load up Guantanamo, which at its height in 2003 held around 680 prisoners. There is immediate room available for 150 prisoners in Camp 6 as well as about 80 cells in the adjacent Camp 5, where the military is building a new detainee medical clinic. There is also unused space encircled by razor wire and empty guard towers in nearby Camp Delta. But the U.S. is no longer capturing large number of prisoners as it did in the early days of the wars in Afghanistan and Iraq and it's not clear where the Trump administration would find many new people to put in Guantanamo.
Trump may seek to charge more prisoners by military commission at Guantanamo. The chief prosecutor at Guantanamo, Army Brig. Gen. Mark Martins, has declined to say whether he will seek to charge any more men or to say what, if anything, he will advise the incoming administration. The U.S. has not prosecuted some men in the past for reasons that include limits imposed by U.S. civilian courts on the charges that can be brought, a lack of evidence or because the case against them was tainted by mistreatment.
The administration could propose legislation to change the rules for military commission proceedings, which have bogged down for reasons including legal challenges and the logistical difficulties of trying a complex criminal case at an isolated military outpost. Any changes to the 2009 act that revamped the rules would require approval by Congress and might face constitutional challenges.
They might also run afoul of a concept in military law intended to prevent "unlawful command influence," or the meddling in an ongoing legal proceeding by high-ranking officials. An attempt by the president or anyone else in his administration to nudge a case along could have the opposite effect, said Jim Harrington, one of the defense attorneys for the men charged as conspirators in the Sept. 11 attacks. "Attempts by this administration regardless of what their intentions might be to interfere in this process are very, very risky."