President Obama’s pledges to close Guantanamo Bay aren’t going to mean any increase in the number of prosecutions of the detainees there. Indeed, officials concede that an overwhelming majority of the captives will never be charged.
The simple reason, officials say, is that they don’t have things they could charge the detainees with that would stick, so instead of losing court cases and being forced to release them, the Obama Administration intends to just keep them locked up forever without the pretense of a trial.
Previously the administration had said 36 of the site’s 164 detainees would eventually be prosecuted, but they have clashed that determination, made in 2010, roughly in half. Now 20 “at most” will ever see the inside of a courtroom.
The change is the result of the October decision by a US Court of Appeals to throw out a conviction against Osama bin Laden’s chauffeur, which they did after noticing that being a chauffeur wasn’t actually a “war crime” when he did it, and was only made one decades later.
The US Constitution has a specific prohibition against ex post facto laws (Article 1, Section 9), but the prospect of ever charging many Gitmo detainees with any crime rested on laws Congress passed years after they were captured. Several Gitmo detainees have also been cleared for release, though officials say they have no intention of actually doing so.
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