Eleven years since the terrorist attacks on September 11, 2001, the majority of the remaining 168 men in Guantánamo are not held because they constitute an active threat to the United States, but because of inertia, political opportunism and an institutional desire to hide evidence of torture by US forces, sanctioned at the highest levels of government. That they are still held, mostly without charge or trial, is a disgrace that continues to eat away at any notion that the US believes in justice.
It seems like an eternity since there was the briefest of hopes that George W. Bush’s “war on terror” prison at Guantánamo would be shut down. That was in January 2009, but although Barack Obama issued an executive order promising to close Guantánamo within a year, he soon reneged on that promise, failing to stand up to Republican critics, who seized on the fear of terrorism to attack him, and failing to stand up to members of his own party, who were also fearful of the power of black propaganda regarding Guantánamo and the alleged but unsubstantiated dangerousness of its inmates.
The President himself also became fearful when, in January 2010, the Guantánamo Review Task Force, which he himself had appointed, and which consisted of career officials and lawyers from government departments and the intelligence agencies, issued its report based on an analysis of the cases of the 240 prisoners inherited from George W. Bush (PDF). The Task Force recommended that, of the 240 men held when he came to power, only 36 could be prosecuted, but 48 others were regarded as being too dangerous to release, even though insufficient evidence existed to put them on trial.
The rest, the Task Force concluded, should be released, although they also advised that 30 of these 156 men — all Yemenis — should continue to be held in “conditional detention,” dependent on there being a perceived improvement in the security situation in Yemen.
There were severe problems with the Task Force’s recommendations, particularly regarding the 48 prisoners deemed to be too dangerous to release despite the lack of evidence against them, because detention without charge or trial is unacceptable under any circumstances. Also troubling, however, was the Task Force’s decision, without reference to Congress, to designate 30 men for “conditional detention,” as this was a detention category that they invented.
Nevertheless, it was reasonable to assume, when the Task Force’s report was issued, or at the latest in May 2010, when it was made public, that, fairly swiftly, 36 men would be put on trial, and 126 others would be released, allowing the status of the 48 others to be the focus of intense scrutiny.
That, of course, never happened. Plans to try the men faltered when the administration fudged the issue, opting for both federal court trials and an updated version of the military commissions that Dick Cheney had first revived in November 2001. In an announcement made in November 2009, Attorney General Eric Holder stated that five men accused of involvement in the 9/11 attacks would be tried in New York City. However, a backlash derailed New York as a trial venue, and then derailed the entire notion of federal court trials for Guantánamo prisoners, despite the successful prosecution and conviction of the one man the Obama administration managed to transfer from Guantánamo to the mainland, Ahmed Khalfan Ghailani. An associate of the 1998 African Embassy bombings, he was convicted in November 2010, and given a life sentence, to be served in a Supermax prison on the US mainland, in January 2011.
With the only option after Ghailani being military commission trials at Guantánamo, a version of the charade that had dominated the Bush years resumed, and to date only four prisoners — Ibrahim al-Qosi, Noor Uthman Muhammed, Omar Khadr and Majid Khan — have seen their cases proceed to trial, although in each case a plea deal was negotiated. Still outstanding are the cases of the 9/11 Five, and Abd al-Rahim al-Nashiri, the alleged mastermind of the bombing of the USS Cole in 2000. Last month the Pentagon announced that another man, Ahmed al-Darbi, tortured in “black sites” before his transfer to Guantánamo, and previously charged under President Bush, would also be charged, but that only makes eleven men in total out of the 36 recommended for trials by Obama’s Task Force.
On the eleventh anniversary of the 9/11 attacks, it is fair to wonder if justice will ever be delivered — and seen to be delivered — in the cases of these men, although arguably the situation is even bleaker for the 48 men designated as being too dangerous to release. Back in March 2011, President Obama formalized their ongoing detention without charge of trial through an executive order, but although he promised periodic reviews of their cases, no evidence has emerged to indicate that any reviews have actually taken place.
With trials delayed for most of those recommended for trials, and with the President’s decision to hold 48 men indefinitely regarded as unacceptable by human rights activists and lawyers, the only area in which progress can be made ought to be in securing the release of the 87 men cleared for release — including the 30 in “conditional detention.” However, Congress passed legislation imposing restrictions on releasing prisoners, and President Obama also capitulated to pressure following a failed bomb plot at Christmas 2009, by Umar Farouk Abdulmutallab, a Nigerian recruited in Yemen, to ban the release of any cleared Yemeni prisoners, issuing a moratorium in January 2010, bringing a halt to the release of any Yemenis in Guantánamo, which still stands two years and eight months later.
This is in spite of the fact that 58 of the 87 cleared prisoners are Yemenis, in spite of the fact that many of those men were first cleared by military review boards under President Bush between five and eight years ago, and in spite of the fact that holding them indefinitely constitutes a type of guilt by nationality that is an insult to all notions of justice, and to the Yemeni people as a whole. For the 168 men still held — those cleared but not released, those designated for trials but not tried, and those being held without charge or trial — American justice has failed them so many times that it is appropriate to conclude, on the eleventh anniversary of 9/11, that the overwhelming majority of the men are being held as political prisoners, and that ought to be a source of great sadness and shame.
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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed — and I can also be found on Facebook, Twitter, Digg, Flickr (my photos) and YouTube. Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.
Hi Andy, unhappy anniversary. Question about Judge Lamberth’s recent statement that no one from Gitmo has been convicted. That’s not right, is it? Obviously Ghailani was so he must have meant just commissions. But even there I thought one of the commission cases you mentioned above was a conviction because (al-Qosi I think) didn’t contest his trial. And remind me what Hamdan’s official outcome was. Thanks.
Yes, unhappy anniversary indeed. Thanks for still caring. I’ve been suffering from Guantanamo fatigue so I took a month off, and haven’t thoroughly analyzed everything that’s happened — Judge Lamberth’s statement, for example, although I am aware of his ruling, and will be writing about it soon. If he said that no one had been convicted then he was certainly wrong. Both Salim Hamdan and Ali Hamza al-Bahlul were convicted after trials – although al-Bahlul refused to take part. Hamdan’s sentence ran from when he was first charged, and ended up as five and a half months, and al-Bahlul is serving a life sentence. The others – Hicks, al-Qosi, Noor Uthman Muhammed, Khadr and Majid Khan – all prevented trials by agreeing to plea deals.
On Facebook, Asif Rana wrote:
Very good piece Andy and an excellent conclusion. Thank you.
Jeannie Armstrong wrote:
I wasn’t aware it was still functioning. Disgusting America!
Thanks, Asif and Jeannie – and everyone who has liked and shared this. I’m glad you liked it, Asif, and Jeannie, I’m pleased to have let you know what the situation is, although reluctantly, of course, as I’d prefer it if the entire US establishment recognized the importance of finally shutting the wretched place.
Annette Gasbarro wrote:
The work you do is very important, Andy. Everyone’s due process rights are important. EVERYONE’S. How does America forget this? We repeat history time and time again- yet we KNOW better. We do know. It’s a cognitive dissonance.
Thanks, Annette, for the supportive words, and also for identifying cognitive dissonance as a problem. I’ve become accustomed to thinking, ever since I first began trying to interest people in the significance of the dangerous rewriting of the rules of detention at Guantanamo, six and a half years ago, that far too many people do indeed know that great crimes have been committed at Guantanamo, but don’t want to have to think about it. And from Bush to Obama, the reasons for doing so – and the excuses people tell themselves – have changed, but the end result is the same. Scapegoats for wrongdoing on a colossal scale remain trapped in Guantanamo, almost all held without charge or trial.
I read it wrong. He said “only a handful” have been tried and convicted. Good for you for taking a break.
Double whoops makes me right again. The judge did say none in his opinion, but later corrected it. The NYT printed the original quote and of course Wittes had an enjoyable Saturday night with their mistake. http://www.lawfareblog.com/2012/09/judge-lamberth-corrects-his-error-while-the-new-york-times-repeats-it/
Thanks for the clarification, Mark. Another example of what a mess Guantanamo is – and another reminder of why Wittes is not the answer!
Hazrat Ali wrote:
Charlie Garcia Monroy wrote:
Hey Andy, how are you? Can we make a letter to our authorities in charge and get it signed by the general people in US. If they are guilty of a terrorist attack, try them and convict them accordingly if there is not sufficient evidence send them to their own country and keep track of them. That is fair…for someone that has nothing to do with what they are been charged off. Just my two cents… this could be anyone to be picked on!
Jennah Solace wrote:
Andy, I’m not sure others are to blame — If Obama wanted to close Guantanamo, he would have found a way. I really believe he made a false promise in order to portray an image to the voters. I don’t think he ever intended to close the prison. It works in the favour of American politicians to keep it open because of its symbolism in relation to the war on terror… which carries on through these awful drone killings, illegal wars, international interference, Muslim discrimination and so on.
Jennah Solace wrote:
Here’s a good article about Obama’s protection of torturers — why would a man who voiced his opposition of torture, to the extent of promising a shut down of Guantanamo, then turn around and shield those who were responsible for crimes perpetrated? http://www.guardian.co.uk/commentisfree/2012/aug/31/obama-justice-department-immunity-bush-cia-torturer
Thanks for the comments/links, Hazrat, Charlie and Jennah. Charlie, I guess it’s time for a new petition, and will look into it. The suggestion is good, but because not enough voters care about the injustices of Guantanamo, there’s no pressure on the administration to do anything about it. That’s the bottom line.
And Jennah, you may be right, but my understanding is that Obama- and his advisers – did want to close Guantanamo, but then, when they set up the Guantanamo Review Task Force to examine the prisoners’ cases, they failed to realize how untrustworthy most of the supposed evidence against the prisoners is – and was – and became anxious and fearful about releasing people who might constitute a threat. I do believe that much of the reluctance to fulfill the promise to close Guantanamo stemmed from this.
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