Nearly eight hundred people have passed through the Guantánamo Bay prison camp since the United States opened it in January 2002. Twenty years after 9/11 and more than a month after the withdrawal of American forces from Afghanistan, thirty-nine detainees are still there. In all that time only twelve have been charged with war crimes, and ten of those are still awaiting trial. The others are held in what’s known as indefinite law-of-war detention: they have been imprisoned, in some cases for decades, without being charged with anything, and even the handful approved for release to other countries continue to languish without a date set for their transfer. The glaring injustice of the situation at Guantánamo Bay presented Russian President Vladimir Putin with the opportunity to criticize the United States on human rights after his meeting with President Joe Biden in June: “Guantánamo is still open. This is contrary to all imaginable rules, to international law or American laws, but it is still functioning.”
President George W. Bush declared in 2002 that Guantánamo would house “the worst of the worst,” but in fact it has also housed the innocent and thus become a lasting symbol of America at its worst. Of the hundreds sent there in the early days of the war on terror, many were held on flimsy evidence or none at all. Some were tortured, before and after their arrival, and some offered false confessions under duress. The Bush administration rushed to formulate novel legal reasons for suspending due process, reclassifying the detained as enemy combatants to be tried not in U.S. civilian courts but at Guantánamo before hastily established “military commissions.” Though the Supreme Court invalidated some of these measures, and the use of torture was eventually discontinued, the Obama administration eased off its original promise to end unlimited detention. For its part, Congress has passed several measures preventing Guantánamo prisoners from being transferred to the United States for trial. Lawmakers worry that the American judicial system, with its emphasis on due process, might be too fair to guarantee conviction, and that open testimony would reveal embarrassing information about coerced confessions, tainted evidence, and the inhumane conditions under which detainees have been held.