Last week, I conducted an interview by email with Carlos Sardiňa Galache, a Spanish journalist, for a journalists’ organization in Spain dedicated to the pursuit of human rights, P+DH (periodismo + derechos humanos), which was published in two parts on Monday and today. The original version in English is published below.
Carlos Sardiňa Galache: Now that Obama is going to close Guantánamo, what will happen to its inmates? Could you explain briefly the different alternatives that the US government has worked out for them?
Andy Worthington: In a major national security speech on May 21, President Obama demonstrated an unnerving ability to keep too many options on the table by proposing five possible courses of action for the prisoners at Guantánamo: release or transfer, trials in federal courts, trials in a revamped version of the Military Commissions (the “terror trials” introduced by former Vice President Dick Cheney in November 2001), and indefinite detention.
As I explained after Obama’s speech, and the simultaneous announcement that one of Guantánamo’s “high-value detainees,” Ahmed Khalfan Ghailani, an alleged associate of the African embassy bombers, would be tried in a federal court in New York, “setting up a two-tier system — of federal courts on the one hand, and Military Commissions on the other — appears to be nothing but a recipe for disaster.” I was even more worried about the prospect of indefinite detention, writing that I “would urge anyone who believes in the fundamental right of human beings, in countries that purport to wear the cloak of civilization with pride, to live as free men and women unless arrested, charged, tried and convicted of a crime, to resist the notion that a form of ‘preventive detention’ is anything other than the most fundamental betrayal of our core values.”
Carlos Sardiňa Galache: Some sources in the Pentagon declared earlier this year that one in seven freed Guantánamo detainees “returned to terrorism”. Some people are using this supposed recidivism to argue against the closing of the prison and the liberation of the prisoners and there has been a great deal of controversy about the issue. What are your thoughts about this alleged recidivism?
Andy Worthington: As I explained in an article after the New York Times’ front-page story citing the “1 in 7” figure was published, “Critics — essentially, anyone aware of the Seton Hall Law School’s excellent work in debunking the Pentagon’s numerous ‘recidivism’ reports (PDF) — immediately denounced the story.” I also wrote, “On May 28, the Times allowed Peter Bergen and Katherine Tiedemann of the New America Foundation to write an op-ed criticizing [Elisabeth] Bumiller’s [original] article in which they concluded, from an examination of the report (PDF) that a more probable figure for recidivism — based on the fact that there were ‘12 former detainees who can be independently confirmed to have taken part in terrorist acts directed at American targets, and eight others suspected of such acts’ — was ‘about 4 percent of the 534 men who have been released.’”
The Seton Hall Law School’s reports are, however, the best source for detailed debunking of the Pentagon’s myths, and I recommend their latest report (PDF) as providing conclusive proof that the Pentagon’s many reports over the years have been nothing more than propaganda. It was sad that the New York Times allowed itself to be fooled so easily.
Carlos Sardiňa Galache: Obama ordered Robert Gates, the Secretary of Defense, to review the conditions in Guantánamo to make sure that the center complies with the Geneva Conventions. The Pentagon issued a report which concluded that the prison effectively complies with the requirements of the Conventions. Journalists like Jeremy Scahill have shown that some brutal methods have not changed in Guantánamo since Obama made his promise of making it a more humane place. What has changed in Guantánamo since Obama took office?
Andy Worthington: There have been some positive changes. As I explained in an article in February, after the Pentagon’s report was published, “Gitanjali Gutierrez, a lawyer at the Center for Constitutional Rights, noted that the authorities at Guantánamo had ‘recently increased detainees’ opportunities for recreation and social interaction,’ and her comments were endorsed by Candace Gorman, the lawyer for two prisoners, who described on her website, The Guantanamo Blog, a visit to her client, Abdul Hamid al-Ghizzawi, on February 4.”
[I]n camp 6, they have now started “movie night.” Imagine my surprise when Mr. al-Ghizzawi mentioned a movie he was watching the week before my arrival. I actually stopped him in mid-thought and said, “Excuse me, movie night? When did that start?” He then explained that they have had movie nights once a week for a couple of weeks.
I of course asked if there was anything else that was new and he told me that the four cages that were the outdoor rec [recreation] area for Camp 6 were torn down and now there was one big cage and one little cage. Now eight men can go out together in the big cage and the small cage is for prisoners on punishment. How sad it is that this is a major improvement, but it is. It gives the men a chance to socialize, a chance to be a part of humanity, instead of being stuck in total isolation.
The last change he told me about was the opening of a new rec area, completely outside of Camp 6, a rec area where they can actually see the mountains in the distance, the trees, the sky, the sun (for four hours once every four or five days). The Camp 6 rec area is confined to the courtyard of Camp 6, so it is surrounded by the concrete facility that is several stories tall. All they could see in that outdoor area was the sand floor and the concrete building.
However, as I also noted, these changes “completely fail to address other outstanding problems with the treatment of the prisoners, which cannot be swept away by allowing them some limited respite from the prolonged isolation that has driven many of them to suffer severe mental health problems.” These problems, in particular, concern the chronic isolation in which the majority of the prisoners are still held, for most hours of the day, which is not regarded as “solitary confinement” by the authorities, and the cruel force-feeding of prisoners on hunger strike (which I reported most recently here), as well as the violence reported by Jeremy Scahill.
Carlos Sardiňa Galache: In his presidential inaugural address, Obama said that he rejected “as false the choice between the safety and the ideals” and one of his most important promises during the campaign was to begin a new era of respect for the rule of law and human rights. But some developments might lead observers to think that Obama could be backtracking on this stance. His proposal of preventive detention, exposed in a speech in May, and the news that the White House is drafting an executive order “that would reassert presidential authority to incarcerate terrorism suspects indefinitely” are especially disturbing. With regard to the treatment of the prisoners of the “war on terror”, what are the main differences and what are the main points of continuity between the Bush administration and the Obama administration?
Andy Worthington: There are, of course, many differences between the Bush and Obama administrations. President Obama, I have no doubt, is fully committed to closing Guantánamo by January 2010, and to upholding the ban on torture that was so shamefully manipulated and sidelined by the Bush administration, and I’m reasonably confident that the administration will have little difficulty deciding that over half of the remaining 229 prisoners should be repatriated or found new countries in which to live.
However, as discussed above, I am distressed that the administration is keeping too many options available, and is refusing to commit to the only acceptable policy: putting prisoners forward for federal court trials or releasing them. As I mentioned, I am horrified by plans to pass legislation endorsing “preventive detention” (as that is effectively what has been happening at Guantánamo for seven and a half years), and am also distressed that the administration and Congress seem determined to revive Military Commissions, as I explained in a detailed article here.
There are many other disappointments, to be honest, although I believe that the government is often moving in the right direction, and clearly has been left with a colossal headache by Bush and Cheney. To keep the list manageable, I’ll focus in particular on the administration’s refusal to accept a judge’s ruling that habeas corpus rights (the right to challenge the basis of your detention before a judge) apply to foreign prisoners “rendered” from other countries to the US prison at Bagram airbase in Afghanistan, which I reported here and here, and the Justice Department’s apparent inability to alter its position regarding the habeas corpus appeals of the Guantánamo prisoners (as triggered by a crucial Supreme Court ruling last June) from that maintained by the Bush administration. This has led to some patently unwinnable cases going before the courts, as was recently demonstrated in the cases of Alla Ali Bin Ali Ahmed, one of around 17 prisoners seized in a university guest house in Pakistan, and Abdul Rahim al-Ginco, a Syrian who was tortured by al-Qaeda as a spy before being imprisoned by the Taliban, and “liberated” by US forces and sent to Guantánamo.
I must also mention that, overall, the Obama administration has not fundamentally challenged the basis of the Bush administration’s “War on Terror,” which was based on a deliberate blurring of the distinctions between the Taliban (a government, however despised) and al-Qaeda (a small terrorist group). Essentially, terrorists should be put forward for federal court trials as criminals, and soldiers should have been held as prisoners of war, protected by the Geneva Conventions, until the end of hostilities.
If this had been the case, we would now be discussing whether it is legitimate to continue holding prisoners in connection with a specific military mission — to oust the Taliban and install a new Afghan government — which was achieved years ago. As it stands, however, the Obama administration has dropped the use of the term “enemy combatants” for the “War on Terror” prisoners, but has not done away with the false rationale of holding prisoners neither as criminal suspects nor as prisoners of war, and it needs to do so, and also to make sure that it never happens again!
Carlos Sardiňa Galache: Obama temporarily suspended the military commissions designed by the previous administration to judge some suspected terrorists and he eventually decided to maintain them, albeit with some changes, despite the promises to close them he had made during his campaign. Why do you think he eventually decided to go ahead with the commissions? What are the differences between the commissions under the Obama administration and under the Bush days?
Andy Worthington: I believe I’ve largely answered this above, but to emphasize, the proposed changes are cosmetic, because they still allow some coerced testimony, and they also allow hearsay, and because the entire Commission system is irredeemably discredited and not fit for purpose. It’s cowardice on Obama’s part not to shut down the Commissions and trust the federal courts to do a job that they have been doing perfectly well for the last 15 years, when there have been over a hundred successful prosecutions of cases related to terrorism.
Carlos Sardiňa Galache: Of particular relevance here in Spain is the issue of the innocent Guantánamo inmates that will be liberated in third countries. The case of the Chinese Uighurs is perhaps the most famous and representative. The US Army long ago declared that they are not “enemy combatants”, but they can’t go back to China, where they would face torture or something even worse by the authorities. But the US government refuses to accept these and other cleared prisoners in the United States even after a judge ruled in 2008 that the remaining 17 Uighurs should be allowed entry to the United States, where there are communities willing to accept them. Why does the US government refuse so stubbornly to accept on its soil these prisoners whose innocence is beyond all reasonable doubt?
Andy Worthington: The judges who overturned the bold and just ruling by Judge Ricardo Urbina that you cited above are from the notoriously Conservative Court of Appeals, so it was no surprise that they overturned Urbina’s ruling. What’s disturbing about Obama’s position, however, is that it reveals, almost more than any other, how he has sometimes lacked courage when it was needed the most.
Instead of challenging the Court of Appeals and/or ordering the Uighurs’ release into the US when he had the opportunity, he hesitated, and allowed Dick Cheney and other serving politicians to wage a campaign of fearmongering and disinformation about the Guantánamo prisoners that not only made it impossible to bring the Uighurs into the US, and allowed politicians to impose conditions on Obama’s plans to close Guantánamo, but also led to Obama losing much of the initiative that he needed not only to sell his plans to close Guantánamo, but also to ensure that the American people were told the full extent of the Bush administration’s flawed policies, which involved lawlessly imprisoning nearly 800 men, most of whom had no connection to al-Qaeda or international terrorism whatsoever.
Carlos Sardiňa Galache: Could the US government face legal problems if these men entered the United States as free men and decided to seek justice in the American court system?
Andy Worthington: It doesn’t look like it’s going to come to that, but I would say that anyone released anywhere must be able, at some point, to seek compensation for what happened to them.
Carlos Sardiňa Galache: It is known that Spain will accept four or five former prisoners and they are from Tunisia and Algeria. It has been said that the prisoners liberated in Spain will enjoy freedom of movement, albeit monitored, within our country but won’t be able to travel abroad. What will be the legal situation of the prisoners liberated in third countries? What are the host country’s, and especially Spain’s, responsibilities towards them?
Andy Worthington: I would expect that no country is going to take cleared prisoners unless those countries’ governments can assure themselves that they are not dangerous. This is part of the problem at present, because the Obama administration is unwilling to concede, as it should, that it has not managed to prove that the majority of the men held at Guantánamo had any involvement with terrorism, because most of them were captured by their Afghan or Pakistani allies, at a time when bounty payments for “al-Qaeda and Taliban suspects,” averaging $5,000 a head, were widespread, and because most of the government’s so-called “evidence” against them comes from the interrogations of other prisoners, who, as the habeas appeals have been showing, were often tortured, coerced or bribed into making statements that are inherently unreliable.
Potential host countries need to understand these facts, to truly comprehend why intelligence officials, over the years, have stated that no more than two to three dozen of the prisoners had any involvement with terrorism, and they also need to remember that very few ex-prisoners have caused any problems, and that Western countries have not generally involved themselves in the pointless expense of keeping released prisoners under surveillance. I do still believe, however, that this process would be made much easier if the US accepted the responsibility for some of its own mistakes!
Carlos Sardiňa Galache: Are the host countries going to receive something from the US government in exchange?
Andy Worthington: I would expect that there will be deals behind the scenes …
Carlos Sardiňa Galache: In Spain, the principle of universal jurisdiction would allow the former prisoners to sue the American government, but these laws are going to be seriously curtailed due to diplomatic pressure, and that will make it impossible to take legal action against the US government. Do the liberated inmates have the possibility somewhere of taking legal action against the US government? Is there any treaty between the host countries and the US to prevent something like this from happening?
Andy Worthington: I’m no expert, but I understand that certain countries may be able to pursue cases against senior officials. However, what interests me more is whether the Obama administration — or, specifically, Attorney General Eric Holder, as it is his responsibility — will appoint an independent prosecutor to investigate the Bush administration’s crimes, as has been hinted at recently (see my article here).
We know Obama is reluctant to do so, but, as I say, it’s not ultimately his call, and the blunt truth is that, if Holder doesn’t investigate the Bush administration’s crimes (because torture is a crime in US law), he will have demonstrated that the most senior officials in the United States can break as many laws as they feel like, so long as they leave office at the end, and that’s simply not acceptable.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and also see my definitive Guantánamo prisoner list, published in March 2009.
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