This helps explain why the pace of transfers out of Guantanamo has dramatically increased, with more detainees leaving the prison in the past two months than in the previous three years combined.
Including the five Guantanamo detainees transferred to Oman and Estonia on January 14, 2015, a total of 27 detainees have been moved out of the prison since mid-November 2014—a substantial increase compared with the total of 19 detainees transferred from 2011 to 2013. That leaves only 122 detainees at Guantanamo, of which 48 already have been cleared for transfer—a process that requires the approval of the secretaries of defense, state, justice and homeland security, as well as the Joint Chiefs of Staff and the director of national intelligence. These detainees are waiting to be sent home or resettled in another country.
Of the 74 detainees that have not been approved for transfer, 33 are slated for prosecution or have been prosecuted already.
Current law enacted by Congress prohibits bringing any detainees into the United States for trial in federal criminal court. That leaves the Guantanamo military commissions as the only available avenue for prosecution of at least some of these detainees. Progress has been incredibly slow, however, and while 10 men in this group of 33 have been charged, none are currently close to an actual trial.
The slow pace is not the only problem with the military commissions, as serious questions remain about whether the commissions are consistent with international and domestic law. In spite of these questions, however, the commission process has at least presented the hope of resolution for some detainees. And paradoxically, being convicted of war crimes in a military commission is actually the surest ticket out of Guantanamo.
Just eight detainees have been convicted since the military commissions were created in 2002, but two of those convictions were overturned on appeal. The vacating of these two verdicts did not affect the detention status of the detainees, as they already had been transferred out of Guantanamo and were living freely in their home countries. Of the remaining six convictions, three of the detainees were quickly transferred out of Guantanamo—with two living freely—to their home countries.
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