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>> you're watching inside story on al jazeera america. i'm ray suarez. the legal, moral, political dimensions of the continued operation of the detention camp

for terrorist suspects at guantanamo bay naval base. just recently six prisoners were transferred to uruguay on south america's east coast. joining us now, the representative of detainees early in the war. the former prosecutor in the department of justice's counter terrorism section, she's currently counsel, and representative of 18 guantanamo detainees. courtney, do the international convention differ when you're talking of a guerrilla army of a no longer sovereign government.

>> they're describing them as unprivilege enemy of we ledge republicans. that's the what is used now. >> would that extend to a soldier fighting for the government. >> not just a nation-state but other legal aspects such as wearing uniform, openly carrying your arm, not attacking civilians, not attacking red cross workers, not attacking ngos, all of which not particularly detainees at guantanamo bay, but all of which in a

al-qaida engaged in early on. and off springs from al-qaeda are involved in today. >> do you sympathize and protect the government, figure out who was an enemy, who was not, and keep people off the battlefield who may take up arms against the united states . >> i do sympathize with that and we had procedures to do that. the military has regulations if you capture someone on the battlefield, and you have any question whether they were properly captured, the military was going to do t and the white house said we want no such hearings.

every area, most were simply shipped off to guantanamo. we learned early on a lot of them were simply there by mistake. >> was the article by process considered a luxury at a time when the ruins in lower manhattan were still smoking? they were still excavating bodies from the world trade center. >> every war is a crisis. we establish rules so they'll be there in times of crisis. if you can throw them away whenever you're hurt, whenever you want to be vegetabl vengeful, we become a lawless state within guantanamo. >> once people were in guantanamo and were there for a while, did they represent more of a challenge the longer they were there? >> yes, they did.

president bush managed to transfer detai detainees from guantanamo. president obama has transferred 90, you has more, but he has to find other countries to accept them. that's not an easy thing. in addition, congress has prohibited bringing detainees to the united states. as long as he can't send them to the united states, and long as he can't send them anywhere else, and as long as there are detainees such as the military commission detainees he doesn't want to transfer, he keeps them. >> lofa lot of the countries of the detainees don't want them . >> i don't know, but they have not been sent home to the

native countries, but it's the united states who don't want to return them because of fear of torture. >> i think recidivism is one fear, but the fear he was just discussing is our obligations under the conventions against torture that the state department special envoy is working hard to relocate the detainees cleared for transfer have to deal with, which is we are not by law allowed to transfer detainees to countries where we fear that their safety could be compromised by their own government or by actors in that country, and that's prevented the transfer of some number of detainees. then there is the issue of a large number of yemeni detainees that have not been transferred as well. >> if i spent eight years in guantanamo, i could imagine my whole government not thinking very much of me once i get home. i'm either a hero or a guy with

a target on my back. >> that might be so, but it does not compromise a person's right to go home. if did he nothing he should go home, and if he has been clear--let me say, while it's a red herring to say that we fear torture and can't send them home, the president has complete authority to send them to third countries. there are people who was a penalty residen resident of britain . what is the reason for not sending him back to britain? the reason why they're still there is because there is demagoguery from republicans a , if it went for the demagoguery, most of these people could be sent home, even to yemen. >> you're representing a lot of these people. it must

be--i can't imagine the psychological pressure of having been cleared, and still being there year after year. >> i represent 17 yemeni detainees, and i've worked on these cases for over a decade. i've gotten a chance to know the detainees as people, which nobody else gets to know them as because the public can't visit them. the politician can't visit them. the media can't visit them. and get to know them. president obama decided in 2010 simply not to release them now they're three fourths of the cleared detainees. he has begun to release them , but he's still in a box because

where is he going to send 55 detainees if he won't send them to yemen, and i doubt he's going to send them to yemen under the current circumstances. >> courtney, just before the break, were there points where we had clear binary choices where we made choices where this made this harder and detractible in the long run? >> i think early on, i think early on there were binary choices made to open the facility and to apply the geneva convictio convention, not apply the geneva convention, and there are choice thousand whether the president will exercise power to not let people go or be influenced by the politics and pressures of the other side. >> which are real, and we'll talk about that. trying the men in guantanamo in military commissions has gone very slowly. trying them in the united states

is politically impossible. letting the ones cleared of wrongdoing going home may be dangerous for the detainees, maybe not. it's not clear what will happen with gizmo. >> sunday night. >> 140 world leaders will take the podium. >> get the full story. >> there is real disunity in the security council. >> about issues that impact your world. >> infectious diseases are a major threat to health. >> "the week ahead". sunday 8:30 eastern. only on al jazeera america.

>> welcome back to inside story. i'm ray suarez. back in the final years of barack obama. the population of the prison is greatly diminished, but for many held there the legal process has yet to even begin. still with us tom wilner who represented detainees captured early in the war that began after the september 11th attacks. courtney sullivan, a former trial attorney from the department of justice's counter terrorism section, and david

reams, who is currently representing 18 guantanamo detainees. the question on the floor, lady and gentlemen, what do we do now? as they say in government speak, atritting, the number of people are going down, but there is no final determination of what to do with the place. >> it's worse of having nowhere to send them. president obama knows where to accepted them, in the united states, but congress has denied that option. there are two guantanamo. there is guantanamo the physical detention facility. that's really what president obama wants to close. i wants to move them to a site in the united states, and i know that tom and i disagree with that, but that would be changing the zip code. then there is the idea of guantanamo. and the idea is holding men without charge or trial. president obama should be

repudiating that idea, which is much more dangerous than the location of the facility, but he actually embraces it. and if he can't move these men to the united states, he can only keep them at guantanamo. >> courtney sullivan, is it as stark and clear as that for you? >> i think it's a little more nuanced for me. i think that there is a middle way. there are probably--the people people--the president has accepted the wartime construct that you can detain people who were involved in the war during the time of war. and whether those people become less dangerous and you release some of them is what is happening now. i think the president can override congress, or congress can change its mind to bring them to the united states and try them in federal court. but i think the third category of what do you do with people who are deemed too dangerous to

release is the sticky wicket. as long as there continues to be a war on terror and the authorization of military use of military force in place, that wicket won't be resolved. >> because there has been no declaration of war, and less well defined war on terror could go on forever, does that give you the right to hold on to these guys forever? >> i think the supreme court has indicated that it probably doesn't. that we no longer have boots on the ground in afghanistan. that the authorization of use in military force was directed at al-qaeda and associated forces and people who engage in those particular hostilities. now the hostilities are spreading. we've closed the bagram facility, and we've repatriated those people, so i think the legal construct is waning.

>> what do we do now? >> i think david got it right and courtney did. it's contrary to our system and our principles to detain people, to impress people unless you charge them and convict them. that's just not something that we believe in. there are many times we might want to do that. we might see people in the streets of washington who we think might be dangerous. we may see potential drug dealers, but our system says you need to try them and convict them. we have one exception to that, that's when you're in a war with boots on the ground you can hold somebody out of the combat to prevent them from going back into combat. in one decision it said that you only pick them up and hold them in connection with that hostility. you can't say there is a global war on terrorism, a never declared war, and pick up people and hold them, that's not something that america believes in.

we should try those . we have seen the evidence against some of these people. it's really bull . it would never stand up in a court of law. the only reason why they're imprisoned is because they're an up represented minority. that's just a shame. >> thank you all for joining me. that brings us to the end of this edition of inside story. thanks for being with us. the program may be over but the conversation continues. we especially want to hear what you think about the issues raised on today's show. you can log on to our facebook page. you can send us your thoughts on twitter. our handle is aj inside story am. or you can reach me directly or follow me at @ray suareznews. in washington, i'm ray suarez.

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