Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention

23.1.10

GuantanamoWith a stunning lack of sensitivity, Barack Obama’s Guantánamo Task Force chose the anniversary of the President’s failed promise to close the prison to announce its conclusions regarding the eventual fate of the 196 prisoners who are still held, stating, with no trace of irony, that “nearly 50” of the men “should be held indefinitely without trial under the laws of war,” as the Washington Post explained.

The administration’s invocation of the laws of war actually refers to the Authorization for Use of Military Force (AUMF), passed by Congress in the wake of the terrorist attacks on September 11, 2001, which 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 those who harbored them), as interpreted by the Supreme Court in June 2004, in Hamdi v. Rumsfeld, in which it was asserted that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF.

This may technically be legal in the United States, but it is at odds with everyone else’s understanding of the laws of war. As every other civilized country understand them, the laws of war involve holding combatants for the duration of hostilities according to the Geneva Conventions, which, under Common Article 3, prohibit the “humiliating and degrading treatment” and coercive interrogations to which the men in Guantánamo were subjected, after President Bush declared in February 2002 that the Geneva Conventions did not apply to al-Qaeda or the Taliban.

Moreover, these men were never screened to ascertain whether they were actually combatants in the first place. Under Article 5 of the Third Geneva Convention (relative to the treatment of prisoners of war), if there is any doubt about whether those detained fit the description of Article 4 (broadly speaking, regular armed forces), they should be treated as Article 4 prisoners until their status has been determined by a competent tribunal. Held close to the time and place of capture, these were convened in every US war from Vietnam onwards, and in the first Gulf War, for example, 1,196 tribunals were held, and 886 men were subsequently released.

However, competent tribunals were not held in Afghanistan (and are still not held to this day, under President Obama), and irregular soldiers (such as those fighting for the Taliban, or military forces related to al-Qaeda who were supporting the Taliban) slipped through the cracks of the protections assured to everyone detained in wartime, whether combatant or civilian, and were labeled as “unlawful enemy combatants,” who, according to the Bush administration, could be deprived of all rights.

This was nonsense, as the International Committee of the Red Cross confirmed in 1958 in a commentary on the Fourth Convention (relative to the treatment of civilians) that “Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or … a member of the medical personnel of the armed forces who is covered by the First Convention.” Moreover, “There is no intermediate status; nobody in enemy hands can be outside the law.”

This interpretation was reinforced by the International Criminal Tribunal for the Former Yugoslavia in a judgment in 1998, but in the “War on Terror,” the result of the Bush administration’s cynical maneuvering was Guantánamo, a prison in which men who had never been adequately screened were presumed to be guilty, even though, in most cases, the authorities knew nothing about them. This was largely because 86 percent of them had not been seized “on the battlefield,” as senior officials claimed, but had been sold to the US military by their Afghan and Pakistani allies, at a time when bounty payments, averaging $5,000 a head, were being paid for al-Qaeda and Taliban suspects.

As a result, the Obama administration’s justification for holding 50 men indefinitely without charge or trial reinforces the Bush administration’s false claim that there is a category of wartime prisoner who can be held indefinitely (as opposed to being held as a prisoner of war until the end of hostilities). What makes this conclusion even more unnerving is that the justification for holding these men indefinitely is evidence that, by President Obama’s own admission, is “tainted” by the use of torture.

In a major national security speech in May, when he first signaled that he was reviving the Bush administration’s justification for holding men indefinitely without charge or trial, President Obama referred to prisoners who “cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.”

To its credit, the administration has belatedly acknowledged that the decision regarding whether or not to hold these men is not the exclusive province of the executive branch. As the Post explained, officials stated that “each detainee has the right to challenge his incarceration in habeas corpus proceedings in federal court.” This is a welcome acknowledgment, as the courts’ role, mandated by an enormously significant Supreme Court ruling in June 2008, has been noticeably sidelined by the administration, even though, in the last 16 months, District Court judges have ruled, in 32 out of 41 cases, that the government’s supposed evidence — largely derived from the prisoners themselves, or from their fellow prisoners — is so “tainted” as to be useless and unbelievable.

Judges have also taken exception to the President’s hidden sub-text — that other compelling evidence has come from the intelligence agencies — noting, on several occasions, that the “mosaics” of intelligence put forward to justify detention may be useful in terms of gathering intelligence, but fail to stand up to scrutiny in a court of law.

Fayiz al-Kandari, photographed at Guantanamo in 2009No indication has yet been provided as to the identities of the 50 men that the Task Force advocates holding indefinitely, but it is a safe bet that one is Fayiz al-Kandari, a Kuwaiti (profiled last October), who has always maintained that he was a humanitarian aid worker, caught up in the post-invasion chaos of Afghanistan. Noticeably, al-Kandari has been persistently uncooperative with the interrogators in Guantánamo, and has refused to implicate himself in any terrorist-related activities.

However, according to the authorities, in a version of reality concocted almost exclusively from multiple levels of hearsay provided by other prisoners, while in Afghanistan, between August and December 2001 he managed not only to visit the al-Farouq training camp (the main training camp for Arabs in the years before 9/11), but also to provide instruction to al-Qaeda members and trainees, to serve as an adviser to Osama bin Laden, and to produce recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad.

Al-Kandari is one of the men whose only hope now is that a District Court judge will see through the authorities’ flimsy case against him, but for those seeking justice for genuine terrorists (or those, at least, against whom something resembling real evidence exists), the news from the Task Force is at least more encouraging. As the Post explained, the Task Force has recommended that “about 35 prisoners should be prosecuted in federal or military courts.”

Without the distraction of the 50 supposedly dangerous men who can be held indefinitely without evidence, this figure rather comprehensively demonstrates the colossal failure rate of the Bush administration’s experiment at Guantánamo: of the 779 men held, just under 5 percent are to face trials. If anything demonstrates that doing away with establishing safeguards in wartime and establishing guilt through arrogant presumption is a disastrous idea, it should be this statistic.

Making up the rest of the 95 percent of Guantánamo’s prisoners who should never have been detained are “at least 110 detainees” who have been cleared for release. As the Post explained, the Task Force “deemed approximately 80 detainees, including about 30 Yemenis, eligible for immediate repatriation or resettlement in a third country. About 30 other Yemenis were placed in a category of their own, with their release contingent upon dramatically stabilized conditions in their home country.”

This is another swipe at the chaos of the Bush administration’s policies, of course, as the figure of 110 can be added to the 44 prisoners already released by Obama, but it is not without its problems. The Post tiptoed around Obama’s cowardly refusal to release any cleared Yemenis for the foreseeable future, in the face of unprincipled attacks from Republicans and member of his own party, who attempted to equate the cleared Yemenis with the failed Christmas Day plane bomber.

Umar Farouk Abdulmutallab had apparently been in contact with an al-Qaeda-inspired group in Yemen that included Saudi ex-prisoners released by George W. Bush, despite warnings from the intelligence services that they were among the handful of dangerous men in Guantánamo, but in the hysteria that recently prevailed, the cleared Yemenis were sacrificed for political gain.

The unadorned figures also fail to reveal that, of the 50 men from other countries, the majority cannot be repatriated because of fears that they will be tortured on their return. On the anniversary of President Obama’s failure to close Guantánamo  — and also of his failure to fully repudiate the Bush administration’s vile policies — the plight of these men should not be overlooked.

Although the Post noted that the administration “anticipates that about 20 detainees can be repatriated by this summer,” and “has received firm commitments from countries willing to settle an additional 25 detainees who have been cleared for release,” experiences this year have indicated that other countries are reluctant to provide new homes for these men when the United States has washed its hands of them.

The blame for refusing to allow any cleared prisoner to settle in the United States, if they cannot be repatriated, lies with the President, with lawmakers, with the Justice Department and judges in the Court of Appeals — as well as numerous media outlets – but its impact not only continues to sour relations with other countries asked to do America’s dirty work; it also threatens to leave innocent men stranded in Guantánamo for an undefined amount of time.

Back in October 2008, when Judge Ricardo Urbina ruled that 17 men from China (the Uighurs), who had won their habeas petitions, had to be rehoused in the United States because they could not be repatriated, and because no other country and been found that would take them, he explained that their continued detention was unconstitutional.

15 months later, Judge Urbina’s words still ring true, as they may on this day next year, when some of these men may still be held in Guantánamo unless America accepts responsibility for its own mistakes.

POSTSCRIPT: In subsequent reports, officials indicated that indefinite detention has been recommended for a total of 47 prisoners, and that the Task Force suggested that they, and those facing trials (82 men in total), should be transferred to a new facility on the US mainland. This was the intention when the plan to buy the Thomson Correctional Center in Illinois was first mentioned, and it remains profoundly depressing that the Task Force is content to move the heart of the Bush administration’s lawless experiment at Guantánamo — indefinite detention without charge or trial — to the US mainland.

The Associated Press also had a different take on the 60 or so Yemenis approved for release, noting only that 17 Yemenis “don’t face prosecution but are likely to be held for some time to come, until US counterterrorism officials can find a secure place in their home country or other foreign countries to send them.”

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, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout. Cross-posted on New Left Project and Uruknet.

26 Responses

  1. Andy Worthington Interviewed by Sibel Edmonds and Peter B. Collins « Dandelion Salad says...

    [...] Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention | Andy Worthington [...]

  2. the talking dog says...

    There are those who are worried about the “black hole” experiments at the Hadron Collider in Switzerland swallowing up Earth (or perhaps, the entire universe).

    It seems far more worrisome (to me anyway) that the Obama Administration intends to make the legal black hole of indefinite detention without the actual authority of either finding someone guilty of a crime or establishing that they are a prisoner of war not only permanent and regular, but place it undeniably on American soil, in the President’s own home state.

    As noted, the timing is not merely “insensitive”– it is an affirmative slap in the face to everyone who supported this President on the basis of his campaign rhetoric in promising to end the abusive practices of the Bush Administration; instead, he has adopted them, and is working toward making them permanent parts of the fabric of American practice (I can’t and won’t call them part of the “legal structure,” because they are conveniently outside of it).

    And in their generally complacent and ignorant states, most Americans have no idea that the hole in the BIll of Rights through which one can now fit the Hadron Collider will eventually (or perhaps, quite quickly) blow back on them personally, in innumerable ways. I understand, of course, that we’re far more afraid of terrrrrrrrorists than we are of abrogations of seemingly abstract rights that we only took for granted anyway.

    I suppose OBL and al-Zawahiri are laughing their respective asses off somewhere, realizing that, along with insanely overbroad military responses, they have gotten us to alter the fabric of our society. In short, they have gotten the overreaction they desired to cause, in every conceivable way.

  3. Andy Worthington says...

    Thanks, TD, for emphasizing the size of the hole in our rights that Obama has failed to reinstate. I’m tempted to conclude, to paraphrase a word that David Addington used in describing the Geneva Conventions in January 2002 (though attributed to Alberto Gonzales), that elementary protections — such as not being imprisoned indefinitely without charge or trial, and on American soil! — are now confirmed as “quaint.”

  4. Andy Worthington says...

    Some comments from Truthout:

    Thebes wrote:

    Would the “Laws of War” require that we were in an ACTUAL Constitutional war???

    I ask because the Congress MUST declare wars, based upon the constitution. We are currently only engaging in military police actions or some other pseudo-warlike-violence. If we are not actually at war, they can’t be prisoners of war.

    Furthermore it defies credulity to say that those turned in for a bounty, not caught in any military action against us, are prisoners of war. That’s sort of like saying in WWII the Jews were legitimately prisoners of war (the man who burned down the Reichstag was a Jew).

    Change? Haven’t seen any yet! Not unless you mean combining corporate power and money with governmental power and money!

  5. Andy Worthington says...

    futhark wrote:

    There is no legal justification for the detention of any of these people. They were kidnapped during an excursion by the U.S. military into the sovereign state of Afghanistan. I agree 100% with Thebes: Congress has the sole power under the United States Constitution to declared war, and, absent such a declaration, military action within the territory of any other nation is a violation of international law. Were not Americans outraged, and justifiably so, at the attack on Pearl Harbor in 1941 BEFORE the issuance of a declaration of war??

    Even if their apprehension was legal, there is nothing in the Constitution that states that the Bill of Rights applies only to citizens. Habeas corpus may only be suspended in case of invasion (of the United States!) or rebellion. The Obama Administration continues the Bush Administration’s practice of flagrantly holding in contempt the document which grants them their limited authority as government officials.

  6. Andy Worthington says...

    An anonymous reader wrote:

    Describing Obama as “cowardly” (a term which could accurately describe all of our current U.S. elected officials) is spot on. Narcissistic also seems fitting to most. The American populace is sickened by their absence of ethics and respect for the law. The continued indefinite detention, torture and extradition of these prisoners is shameful.

  7. Andy Worthington says...

    Steve wrote:

    My first thought was to rail against the unconstitutionality of this continued deceit, as have other commentators. Also thought of Obama’s message of “change”, how little we have seen.

    But really, why bother? Our government is again a law unto itself, and has no real legitimacy. We (USA) were born of criminal conduct and haven’t deviated one inch from our myth filled origins. Our only excursions into decency are also calculated for personal gain, then wrapped in notions of noble purpose to fill the air with distraction. Our only claim to fame is material prosperity, and that’s beginning to falter.

    Wake up friends, we are also the “bad guys”. Once one accepts this, everything else makes perfect sense. Whatever else did you expect from criminals? Truthfulness? Honesty? Justice? Please.

  8. Andy Worthington says...

    Columbus Guy wrote:

    ” A Rock and A Hard Place”/ It Is What It Is…
    Anyone really think this would be clean/easy?
    Generations of Veterans have said to this and every other nation of war…
    There Are No Winners, Only Survivors…
    In 1776,1860,1914,1939,1949,1962 Each Generation of us who have faced these questions did what we had to do to survive…
    Consider:
    Did We Bomb Their Embassy?
    Did We Blow Up Their Airliners?
    Did We Blow Up Their Ship In Port?
    Did We Bomb Their World Trade Center?
    Did We Behead Their Reporters?
    Prison seems mild in comparison…
    I’m No Fan: I’m Just Saying;
    It Is What It Is

  9. Andy Worthington says...

    An anonymous reader replied:

    To answer your questions, Columbus Guy:

    No. We did, however, recruit, brainwash, train, equip, fund and provide intelligence to those who are now called the Taliban, Al Qaeda, as well as make numerous promises to Afghanistan to help rebuild their country after we and the USSR were through using it as a square on the geopolitical chessboard. We did also attempt for more than ten years to force Afghanistan to sign a pipeline lease agreement for less than 10 cents on the dollar of its real value, so that our corporations could rake in more trillions of dollars. We did, in fact, send a State Department team to Afghanistan mere months before 9/11 to threaten their gov’t with violent removal and replacement with more pliable puppets if they didn’t sign. We were first; and we acted far more barbarically.

    We have raped and pillaged as we pleased, all for the benefit of the wealthy few. We are the world’s most despicable empire.

    And yet people like you have NO CLUE about any of it. You’ve bought into the revisionist BS and refuse to acknowledge that the US could behave so reprehensively for some many decades…not just in the Middle East, but also in South America, Asia, Africa and anywhere else where we wanted control of the resources.

    And it’s ALL coming back to roost.

    By the way, CG… 9/11 attacked what are all considered appropriate targets: Financial center; Command & Control of the military; The most senior gov’t. Yes, 3000+ civilians lost their lives. We call that collateral damage, and I don’t hear you saying a word about the hundreds of thousands of civilians who have died in Iraq and Afghanistan, nor of the millions who have been displaced. We call them collateral damage as we sweep them under the rug with everything else we don’t respect.

    I don’t hear you saying a word about bombing hospitals, attacking doctors who have worked hard to save our soldiers, because a fake rescue is so much better for the war machine than it is to show indigenous brown-skinned people as human and equal in value to ourselves.

    Yes, cutting off heads is brutal, to which I make 3 points in rebuttal:

    1. We are FAR more brutal in that we destroy entire countries — for control of resources by the wealthy few.

    2. Islamic Law may be brutal and direct, but it is no less lethal than capital punishment here, yet we use it on murders. As we are invaders, usurpers, murderers, rapists and plunderers in their eyes, capital punishment is deemed a fitting punishment.

    3. Islamic Law says to cut off the hand of a convicted thief. Brutal and barbaric as it is, a man can only steal twice. Do they need to cut off another one of OUR “hands” to get the message? Message being: Stop FUCKING with us!

    Give some serious thought to this, CG. Do some research. Discover that we are NOT always in the right just because our gov’t tells us we are.

  10. Andy Worthington says...

    Burglar added:

    To anonymous in your answer to Columbus Guy. Great post. I tried to find an error in your post without success. Although if Zbigniew Brizinski’s view of the world is correct, in that this is a dog eat dog world, then what the US is doing is correct. Abhorrent, vile, counter productive, and lots more .

  11. Andy Worthington says...

    barry wrote:

    When the evidence of their crimes in Iraq was judged inadmissible, seven Blackwater mercenaries were acquitted and freed. If the same finding — that all the evidence is inadmissible in court — means that these fifty men will be imprisoned without trial, we need to know what “the duration” means. There is no declaration of war, and no parties with the power to sign a binding peace.
    Any government that imprisons its enemies indefinitely without charges or trials deserves to be overthrown by its own citizens.

  12. Andy Worthington says...

    Never one to pull her punches, Guantánamo attorney Candace Gorman had this to say on her website, The Guantánamo Blog:

    As they slink off into the sunset I would like to make a few observations about the miserable failure formerly known as the “Guantánamo Review Task Force.” They closed shop yesterday in what I am sure many amongst them thought was a clever move … using the date Obama promised to close Guantánamo as their date to walk away. In fact, they even tried to pretend near the end, that this was the date they were always planning on ending things … as though this were all part of some great plan.

    From the beginning the efforts of this task force were dismal (spending months trying to figure out how to get organized and whining about the lack of files) and when you combine it with the mishaps of the “justice” department you can’t help but wonder if they were trying to outdo the old tag team of Killer Kowalski and Gorilla Monsoon back in the 60′s, with their antics.

    The antics included having the “team” tell habeas counsel that if they would agree to stay their case it would be given a priority review. They forgot to mention that the only real benefit of the review (whether prioritized or not) was for the “justice” department … because it was the justice department that would then take the information from the review and if your client was so fortunate as to be “cleared for release” they used that information to put your case forever on hold … In other words, men who were cleared by the “review team” could no longer pursue their habeas cases and were no longer entitled to have a judge hear their habeas cases …

    And to add insult to injury, most who were “cleared” (110 according to the “team”) have not, for whatever reason, been released.

    So for many of the men at Guantánamo the “team” has had a destructive influence. It once again took the power of Court intervention, which we have fought for all of these years, and shoved it up the Supreme Court’s ass … while most of the district court judges looked the other way and shrugged their collective shoulders.

  13. Monday | Headlines says...

    [...] Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention [...]

  14. Guantánamo “Closed” a Year Ago: Why We Still Protest and Fast / Waging Nonviolence says...

    [...] be held indefinitely without trial under the laws of war,” according to The Washington Post. As Andy Worthington correctly notes, such indefinite detention is not only legally dubious, it “rubs salt in Guantánamo’s [...]

  15. The Black Hole of Guantánamo by Andy Worthington « Dandelion Salad says...

    [...] that was scattered throughout various department and agencies, and took until January this year to complete its findings, advising the President that 35 prisoners should be put forward for trials, that 47 should continue [...]

  16. Neocon Witchhunters and Dictatorship – Dark Politricks says...

    [...] military commission trial system for Guantánamo prisoners, and also signaled his willingness to continue holding other men indefinitely without charge or trial. A government driven more by principles and less by pragmatism would have [...]

  17. Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies « Dandelion Salad says...

    [...] supported the Bush administration’s view of the world. Obama escalated the war in Afghanistan, endorsed indefinite detention without charge or trial for prisoners at Guantánamo, and shielded Bush administration officials [...]

  18. Seven Years of War in Iraq: Still Based on Bush and Cheney’s Torture, Lies | Amauta says...

    [...] the Bush administration’s view of the world. Obama escalated the war in Afghanistan, endorsed indefinite detention without charge or trial for prisoners at Guantánamo, and shielded Bush administration officials [...]

  19. Lawrence Wilkerson Demolishes Bush, Cheney and Rumsfeld’s Lies About Guantánamo « Dandelion Salad says...

    [...] on national security issues by recommending that, although 35 men should be tried, 47 others should continue to be held indefinitely without charge or [...]

  20. Bush, Cheney, and Rumsfeld’s Lies about Guantánamo : STATESMAN SENTINEL says...

    [...] on national security issues by recommending that, although 35 men should be tried, 47 others should continue to be held indefinitely without charge or [...]

  21. Guantanamo and Habeas Corpus : STATESMAN SENTINEL says...

    [...] in the meantime, of course, the real terror suspects — 35 of those held, according to the Obama administration’s interagency Task Force, which reviewed their cases [...]

  22. Col. Morris Davis Criticizes Obama on Guantánamo by Andy Worthington « Dandelion Salad says...

    [...] rulings in the courts on their habeas corpus petitions) has decided should continue to be held indefinitely without charge or trial, and his insistence that, in a broader sense, “transparency on all fronts is imperative,” and [...]

  23. Why Judges Can’t Free Torture Victims from Guantánamo : STATESMAN SENTINEL says...

    [...] in a parallel universe with scant regard for the judges in the prisoners’ habeas petitions, revealed that “at least 110 detainees” had been cleared for release, and that this number [...]

  24. House Kills Plan to Close Guantanamo « SpeakEasy says...

    [...] of us who don’t mind prisoners being brought to the US mainland to face trials (35 in total, according to Obama’s Guantánamo Task Force), but who are implacably opposed to the administration’s contention that it can hold some [...]

  25. Andy Worthington: More "Congressional Depravity" on Guantanamo | BlackNewsTribune.com says...

    [...] for President Obama’s assertion that 48 of the remaining 181 prisoners can continue to be held indefinitely without charge or trial, and simply moving them from Guantánamo to the U.S. mainland would only make matters worse. [...]

  26. House Kills Plan to Close Guantanamo | Mediaroots says...

    [...] of us who don’t mind prisoners being brought to the US mainland to face trials (35 in total, according to Obama’s Guantánamo Task Force), but who are implacably opposed to the administration’s contention that it can hold some [...]

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