President Obama’s admission in China that he will miss his self-imposed deadline for the closure of Guantánamo is disastrous for the majority of the 215 men still held, and for those who hoped, ten months ago, that he would move swiftly to close this bitter icon of the Bush administration’s lawless detention and interrogation policies in the “War on Terror.”
Despite announcing the closure of Guantánamo on his second day in office, as part of a number of executive orders rolling back the Bush administration’s executive overreach, Obama then failed to follow up with a detailed plan, missing the opportunity to bring a number of wrongly imprisoned men to the US mainland (the Uighurs, Muslims from China whose release into the US had been ordered by a District Court judge), and allowing Republican fearmongers to seize the initiative, mobilizing lawmakers (including some in Obama’s own party) to pass legislation preventing any cleared prisoner from being released into the United States.
Recently, lawmakers were even prepared to go so far as to prevent the administration from bringing prisoners to the US mainland for any reason, even to face trials. Senior officials successfully fought back against this proposal, and announced last week that ten prisoners, including Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, were to be brought to the US mainland to face trials, either in federal courts or in a revamped version of the much-criticized Military Commissions, introduced in November 2001, and revived by Congress in 2006 after the US Supreme Court ruled that they were illegal.
However, administration officials have also explained, as the Washington Post described it, that the government does not intend to put more than 40 prisoners in total on trial, leaving 175 men in Guantánamo in a predicament that has been troubling since Congress rose up in revolt against Obama’s intentions, and which has suddenly become even more alarming.
While Obama’s deadline stood, there remained the possibility that the President could persuade lawmakers to drop their opposition to bringing these 175 men to the US mainland, so that Guantánamo could be closed as promised.
Now, however, with the President publicly conceding that this will not be possible, and refusing to set a new deadline, it is difficult to work out what pressure the administration can exert on lawmakers to persuade them to overturn their opposition to allowing any prisoners into the US unless they are to face trials.
The horrible truth is that, as a result, prisoners cleared by military review boards under the Bush administration, by the Obama administration’s interagency Task Force, established as part of his executive orders, or by the US courts, after successful habeas corpus petitions, who cannot be repatriated because of fears that they will be tortured in their home countries, have no alternative to remaining in Guantánamo, until, if possible, other countries can be found to accept them.
According to officials, around 90 prisoners cleared for release are still at Guantánamo, and a majority of these — from countries including Algeria, China, Libya, Syria, Tunisia and Uzbekistan — cannot be repatriated. European countries have so far accepted a handful of cleared prisoners, but a major stumbling block to the acceptance of others has been the Americans’ refusal to accept cleared prisoners themselves.
The other group — numbering around 75, according to administration officials — are those whom the government does not wish to either charge or release, claiming that they are too dangerous to be released, but that not enough evidence exists to put them on trial, or that the evidence is tainted through the use of torture (or, as the Washington Post put it, “because of evidentiary issues and limits on the use of classified material”). This is deeply disturbing, as there is, simply, no excuse for holding people in what is essentially an identical form of “preventive detention” to that practiced by the Bush administration, and prisoners should either be charged or released.
For a small number of these men — eight, to date — the administration can justify its actions because they lost their habeas corpus petitions before District Court judges, who ruled that the government had established, by a preponderance of the evidence, that they were associated with al-Qaeda and/or the Taliban. As a result, the government can continue to hold them under the Authorization for Use of Military Force, the founding document of the Bush administration’s “War on Terror,” through which Congress authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”
It is difficult to see why administration officials mentioned the number of prisoners whom the administration intends to hold indefinitely without charge or trial, as their ongoing habeas corpus petitions will put these decisions in the hands of judges, where they belong. In the long run, it is uncertain how acceptable it is to hold prisoners on this basis, especially if it turns out that they may be held for the rest of their lives for “crimes” no more egregious than, for example, cooking for an Arab fighting force supporting the Taliban in 2001.
In a world unsullied by the Bush administration’s lawlessness, they would have been held as prisoners of war protected by the Geneva Conventions, who can be held until the end of hostilities (in which case they would still be held, as no one seems to have any idea when this particular war will come to an end). However, this didn’t happen, of course, and, as a result, the administration needs to do all in its power to facilitate the habeas corpus petitions of the majority of these 75 men, and to release those whose petitions succeed (as in 30 of the 38 cases so far decided).
Even so, it remains unacceptable that these men should have to stay in Guantánamo while their petitions proceed to court, just as it remains unacceptable that cleared prisoners should languish at Guantánamo for one minute longer, let alone for months, or possibly years beyond the deadline that has proven impossible for the administration to honor.
In an interview with Fox News that followed his announcement about Guantánamo, President Obama explained, “We are on a path and a process where I would anticipate that Guantánamo will be closed next year. I’m not going to set an exact date because a lot of this is also going to depend on cooperation from Congress.”
That last line sums up the problem succinctly, and I can only hope that this cooperation will be forthcoming, although one major problem, clearly, is that Republicans will delight in thwarting the President still further. If it does not happen, however, the failure to close Guantánamo will cast a dark shadow on Obama’s presidency, and an even darker one on the prisoners — whether cleared men, or others still held without charge or trial — who will rightly conclude that, for them, there really is no justice in the United States.
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 I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.
As published exclusively on Truthout.
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Over on Facebook, Abduljaleel Bain wrote:
I suppose it’s the fact that the impact on the mental well being of these men is going to be unmeasurable that gets to me. I mean, how do you deal with the knowledge that you are not going on trial but neither are you going to be released? I don’t know if I could cope with that.
Shepherd’s Pie wrote:
Did you seriously expect him to keep his word? Its sad — he had these ‘ideas’ but just like the UK those ‘behind the scenes’ who really ‘rule’ have castrated him.
This was my reply:
Ah yes, I don’t know what I was thinking when I thought that he might err on the side of the skeptics. Instead, he’s left that to the District Court judges, and neither he nor AG Holder has done anything to make the Justice Department lawyers hurry up the habeas cases, or, for that matter, check that they’re not utterly risible before sending them before the judges. This is still the mind-blower:
Sophie Khan wrote:
Obama not closing the camp by the deadline he set is not a surprise at all. I knew he wouldn’t be able to do that, so when everyone started to say that Guantanamo was no longer an issue I was a bit surprised to hear that and thinking how naive people really were.
You can’t blame Obama, he has good intentions, it’s just the power elite who really control America that don’t. Their agendas are dangerous and immoral and at the moment unstoppable.
Walter L. Bradley Jr. wrote:
You are so right Sophie. Our government is nothing more than a front for the ‘Ruling Corporatocracy’ aka ‘Military Industrial Complex’. Whether bought and paid for, or otherwise coerced, the politicians service the agenda of their Corporate Masters at the expense of all else.
The difference between Candidate Obama and his intentions and President Obama and his actions can be explained by the following insightful and quite probably true words of the late, great Bill Hicks, “I often think that every new American President is sworn in; they’re taken down into the basement of the White House and they’re shown the real film of what occurred at Dealey Plaza in 1963.”
I like the quote and I’m sad that the American govt is just a front, but that’s just how it is.
There is a movement here as well by the power elite to curtail our rights once and for all but there is an awareness of that among the general public and because we love our rights and freedoms so much it’s going to a battle which the power elite may not want to fight. And if they do they will have a fight on their hands.
And this was my reply:
Thanks, Sophie and Walter. Good points, although in the specific context of Guantanamo we need to focus on five things that ought to be achievable (I’m not saying they will be, but they’re tangible objectives):
1) federal court trials or nothing else for the 40 or so prisoners the government wants to try (i.e. no Military Commissions)
2) persuading Congress to allow all the prisoners to be moved to the US mainland
3) persuading Congress to allow cleared prisoners to be settled in the US if no other home can be found for them, and repatriating others who can return home safely
4) allowing the prisoners’ habeas petitions to proceed until the District Court judges have whittled down the remaining prisoners to however many dozen it will be who have lost their habeas petitions
5) and then asking why those who have lost their habeas petitions — people who were, for the most part, peripherally connected to al-Qaeda or the Taliban and were not actual terrorists — can continue to be held, apparently forever
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