Why Gitmo Will Never Close

President Obama wants to shut down the controversial prison but not the policies it has come to represent.

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Eugene Richards for TIME

The restraining chair and forced feeding apparatus on display in an empty room of the detainee hospital in Guantanamo Bay, Cuba.

A lack of faith in Obama is one reason for the hunger strikes (although detainees have also alleged improper treatment by guards, including charges of mishandling Korans, that the military denies). Among the hunger strikers are 86 who have been declared safe for release—some of them by two different administrations—and who were crushed when Obama failed to deliver on his 2009 promise to close Gitmo.

Should They Stay or Should They Go?

Understanding why Gitmo hasn’t closed requires understanding who exactly is there. The camp holds three types of inmates, each posing different challenges. The first group consists of those 86 detainees deemed safe to release to their home countries or third nations, so long as they can be monitored and accounted for to ensure they don’t take up arms against the U.S. The second group consists of suspected terrorists whom the Administration is prosecuting or plans to charge with specific crimes. The third group consists of prisoners too dangerous to simply release—for reasons that could include a suspected organizational role in al-Qaeda, explosives training or in some cases an openly stated desire to kill Americans—but also impossible to put on trial, maybe because of evidence rendered inadmissible by torture; because the troops who captured them didn’t collect evidence; or because they supported al-Qaeda before the U.S. made that a crime for foreigners overseas.

(MORE: Guantánamo’s Starving Students)

The first group is the easiest to deal with. Obama has the freedom to send the 86 men home on his own. Fifty-six of them are from Yemen—all of whom could be there by now had al-Qaeda’s Yemeni affiliate, whose leaders included an ex–Gitmo detainee, not tried to bomb a Northwest Airlines flight on Christmas Day 2009, leading Obama to halt detainee transfers back to the country. Obama now says improvements in the Yemeni government’s ability to monitor repatriated detainees allows him to lift his self-imposed moratorium on returning detainees there. He can likewise dispatch the rest of the cleared inmates to other countries unilaterally.

Republicans warn that even some of those detainees deemed safe for release will inevitably join forces with Islamic radicals—as did Saeed al-Shihri months after his 2007 release from Gitmo, eventually rising to the No. 2 spot in al-Qaeda’s Yemeni branch before being killed by a drone strike earlier this year. “I don’t trust the government” in Yemen, Republican Representative Peter King told ABC’s This Week on May 26. But they can’t prevent Obama from proceeding. How fast he’ll move is another question: Obama said each of the Yemenis must first undergo yet another review.

PHOTOS: The Portraits of Gitmo Detainees

The second and third groups are considerably tougher cases. Obama would like to move the trials by military commissions now under way at Guantánamo to a location in the U.S. and bring any new cases against prosecutable suspects on American soil, either in military or civilian courts. He also presumably intends to move to highly secure sites in the U.S. the roughly 46 who can be neither released nor tried, until some solution can be found for them. But right now Obama can’t move any detainees into the U.S. without Congress’s help. In 2009 he tried to resettle some low-risk prisoners in the U.S. and also proposed trying alleged 9/11 mastermind Khalid Sheikh Mohammed and four other Gitmo inmates in federal court. A furious backlash from conservatives and even many Democrats who feared the soft-on-terrorists label prompted Congress to block inmate transfers into the U.S. for any reason.

And while Obama’s May 23 speech may have stirred the hearts of some liberal supporters, it doesn’t seem to have moved the Republicans whose support he’ll need to move detainees into the U.S., particularly in the GOP-controlled House of Representatives. “I don’t get the sense that this pressure is having an impact” on House Republicans, says Representative Adam Smith, the top-ranking Democrat on the House Armed Services Committee. Many Republicans argue that the risk of detainees’ committing future acts of terrorism outweighs the damage Guantánamo does to the U.S.’s image. And they have little interest in Obama’s appetite for moving more terrorism cases into civilian courts.

PHOTOS: Inside Guantánamo

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