Will Guantánamo Ever Be Closed?

8.12.12

Nearly eleven years after the Bush administration’s “war on terror” prison opened on the US naval base at Guantánamo Bay, Cuba, its much-mooted closure seems as remote as ever.

Last week, there were encouraging noises, when Sen. Dianne Feinstein (D-CA), the chairwoman of the Senate Intelligence Committee, presented a report prepared by the Government Accountability Office (GAO), looking at the feasibility of housing prisoners in the US. The report found that there were 104 suitable facilities; 98 run by the Department of Justice, and six by the military. Releasing the report, Sen. Feinstein said, “This report demonstrates that if the political will exists, we could finally close Guantánamo without imperiling our national security.”

On the military side, there are three Naval brigs — at Charleston, South Carolina, Chesapeake, Virginia, and Miramar, California — as well as the correction facilities at Fort Leavenworth, Kansas and Lewis-McChord in Washington, and the Disciplinary Barracks at Leavenworth. In total, these facilities are almost half-empty.

The other route would be for prisoners to be held in federal prisons. The GAO found 98 suitable prisons, which, between them, hold 373 people convicted of charges related to terrorism.

As Spencer Ackerman explained for Wired, the GAO report is “rigorously agnostic on whether Guantánamo ought to be closed,” and the researchers also pointed out that there were significant obstacles if the prisoners were to be moved, not the least of which is that Congress would have to repeal legislation preventing the Justice Department from taking custody of Guantánamo prisoners.

Nor is the military option any easier. Since 2009, Congress has repeatedly passed legislation preventing the President from bringing prisoners from Guantanamo to the US mainland, and, just days after Sen. Feinstein published the GAO report, the Senate voted, by 54 votes to 41, and with bipartisan support, to ban the administration from moving prisoners from Guantánamo to the US mainland for another year, via an amendment introduced by Sen. Kelly Ayotte (R-NH) as part of this year’s National Defense Authorization Act.

The NDAA also reiterates a ban on allowing funds to be used for the transfer of prisoners to other countries, and on funds to construct, acquire or modify any detention facility on the US mainland to house any prisoners at Guantánamo, prompting a strong rebuke from the White House Office of Management and Budget, which released a statement in which Congress’s efforts to keep Guantánamo open were described as “misguided when they were enacted and should not be renewed.”

The statement also explained, “If the bill is presented to the President for approval in its current form, the President’s senior advisers would recommend that the President veto the bill.”

Furthermore, the statement noted that, “Since these restrictions have been on the books, they have limited the Executive’s ability to manage military operations in an ongoing armed conflict, harmed the country’s diplomatic relations with allies and counterterrorism partners, and provided no benefit whatsoever to our national security,” and added, “The Administration continues to believe that restricting the transfer of detainees to the custody of foreign countries in the context of an ongoing armed conflict interferes with the Executive’s ability to make important foreign policy and national security determinations, and would in certain circumstances violate constitutional separation of powers principles.”

It was also noted that the ban on constructing, acquiring or modifying a detention facility on the US mainland for any prisoner in Guantánamo “shortsightedly constrains the options available to military and counterterrorism professionals to address evolving threats.”

Despite the strongly worded statement, the whole struggle between Congress and the Executive is playing out as it did last year, when President Obama’s threatened veto did not emerge, and instead he issued a signing statement explaining his objections, but going no further.

Where this leaves the Guantánamo prisoners is unclear. On November 27, Human Rights Watch and 27 other organizations sent a letter to President Obama, “urging him to veto the National Defense Authorization Act for FY 2013 if it impedes his ability to transfer detainees out of Guantánamo Bay,” and pointing out that, “if the NDAA is signed with any transfer restrictions in it, the prospects for Guantánamo being closed during your presidency will be severely diminished, if not gone altogether.”

This is not alarmist rhetoric, given that only five prisoners have been released from Guantánamo in the last two years — a number almost matched by the three who have left in coffins. Of the five, three had their habeas corpus petitions granted by a US court (back in the days before the D.C. Circuit Court made habeas corpus meaningless for the Guantánamo prisoners), and two others were released as a result of plea deals.

Although neither was actually a significant  prisoner — one, Omar Khadr, was a child at the time of his capture, and the other, Ibrahim al-Qosi, was a cook for people in a compound associated with al-Qaeda — they were amongst the handful of prisoners put forward for a trial by military commission. Their release, therefore, contrasts even more sharply with the fate of over half of the 166 men still held — the 86 men who were approved for transfer from Guantánamo by President Obama’s interagency Guantánamo Review Task Force in 2009.

The fact that they are still held when those who cut plea deals and confessed to being war criminals have been released only confirms that, at Guantánamo, every notion of what constitutes justice has been twisted out of any recognizable shape.

Between them, the administration and Congress need to work out how to free those men whose release was recommended by the Task Force, and to try those recommended for trials (around 30 of those who remain), and also to think long and hard about how long the remaining 46 men can continue to be held.

The Task Force recommended this group of men for indefinite detention without charge or trial, because they are allegedly dangerous even though no information that purports to prove this can be presented before a court. That means that the supposed evidence is profoundly unreliable, although the administration accepted the recommendations, and in March 2011 President Obama issued an executive order authorizing the detention of these men, and providing them with periodic reviews of their status about which we have subsequently heard nothing.

If they are to continue to be held on this basis, the administration and Congress should think about whether this designation can really be justified to hold them for the rest of their lives.

Most of all, though, those in positions of power and influence need to release the 86 men that a Task Force of qualified individuals decided should no longer be held, because, as disgraceful as it is to be finding false justifications for holding men forever because of the alleged but apparently unprovable threat they pose, it is even worse to hold men forever that you have publicly stated you no longer wish to hold. 55 of these men were named, for the first time, on a list made available by the Department of Justice just three months ago, and their release should be a priority for everyone in a position to facilitate it.

Note: The photo above is from a set of photos I took in Washington D.C. on January 11 , 2012, at a series of protests marking the 10th anniversary of the opening of Guantánamo.

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.

14 Responses

  1. Jeff Kaye says...

    The reason they cannot close Guantanamo is simple: it is the site of horrendous and as yet not completely understood war crimes, crimes that would implicate very many individuals, both civilian and military, both high-ranking and low. They’ve really painted themselves in a corner. The military and executive branch went to their assets in Congress and got them to sponsor provisions severely hampering shutting down Guantanamo or releasing its prisoners, many of whom could testify about quite serious crimes, many of which are still unknown and unreported.

    Indeed, the widespread use of drugs at Guantanamo, and the experiments upon prisoners, that I believe we will see revealed in months and years to come was the most hideous side of that torture facility.

    Nothing ever happens for no reason. The “failure” to shut down Guantanamo is actually a policy of preventing access to a crime scene and its witnesses. As with your own writings, Andy, about Shaker Aamer, who could tell us a great deal, and appears motivated to do so, about what has gone on in Guantanamo, his continued detention is surely because they dare not let him out.

    The one thing on our side is that many, many know their futures are held hostage to future revelations and charges, and I have no doubt there are those who will one day go to jail. There is really nothing they can do to stop this, and they have only the hubris of the initial criminals under Bush/Cheney, CIA and JSC to blame for that. And now, Obama is part of that same crowd! Anyone who looks to the man who placed torturer and enabler of the infamous Wolf Brigade, Gen. Petraeus at the head of CIA (he was still bragging at Congressional hearings he’d use torture), and Brennan as his national security adviser, is not someone to look to close Guantanamo. Even the man he appointed as his head Guantanamo guy, Daniel Fried, was Bush’s European point man on renditions!

    They are playing for time, which is what all war criminals do. It is a proven strategy, and they will stick to it. And unfortunately, the mainstream press and bloggers will go along with it.

    Even now, they hold onto a Guantanamo prisoner’s corpse in a military base on distant foreign soil, the better to keep it from further examination by non-military forensic experts.

    Then, there are those, too, plotting to figure out how they can use transfers to the U.S. to bring precedent for indefinite detentions to U.S. soil. It is crazy-making to think how much of this is basically open-source, available for anyone to pursue, but we live in an age of self-absorption and fear. The world will get a wake-up call one day, and previous generations will not look back kindly on their forbears who sat by and let catastrophe take place, in the form of either a new World War or return to fascism, or both.

  2. Andy Worthington says...

    I’m sorry to have to tell you what a brilliant analysis that is, Jeff, because the picture you paint is so troubling. It is not all I worry about, of course, as here in the UK we have a Tea Party government trying to destroy the state, and conducting an open campaign of vilification against the unemployed and the disabled. The f-word you mention – fascism – is evident in this approach too.
    People need to wake up. Seriously.

  3. Andy Worthington says...

    On Facebook, Anwar Mafille wrote:

    Moving detainees to the mainland would only “displace” the problem wouldn’t it? Especially since the conditions of detention in US supermax prisons are problematic.

  4. Andy Worthington says...

    Thanks, Anwar, for mentioning a problem that has been dividing opponents of Guantanamo since 2009. For myself, I believe that bringing the men to the US mainland would give them rights they don’t have in Guantanamo, and would allow new legal challenges to be made, but others disagree. I plan to discuss these issues further in articles to come.

  5. Andy Worthington says...

    Aleksey Penskiy wrote:

    “Republican Senator Wants a Brand New Gitmo”
    http://www.motherjones.com/mojo/2012/11/kelly-ayotte-gop-senator-new-gitmo

  6. Andy Worthington says...

    Thanks, Aleksey. Kelly Ayotte – one monstrous excuse for a human being!

  7. Jeff Kaye says...

    HI Andy, I am not going to walk-back my analysis above, but I do wish to undo a bit of its bleakness. There are forces fighting the growing reactionary actions of both the UK and US states (or in Europe). You can’t wipeout centuries of struggle just like that. Even when the fascism was as harsh as one could imagine, in the days when the Gestapo, the SS, and the Einstatzcommandos ruled, all opposition could not be wiped out. And we are nowhere near that kind of scenario right now.

    What we need is a new political leadership to arise, one willing to separate itself from the political deadweight and deadend of the supposed “progressive” parties, like the Democrats in the U.S. and Labor in the UK, and create new parties aimed at wrenching control of the state from the plutocrats and their supporters.

  8. Tom says...

    Not to discourage you in any way Andy. But it won’t be shut down for several reasons. The main one is “protection from terrorists”. We’ve all heard the arguments about whether Al Queda is real or not. This think tank expert says they are. John Pilger (just a globally well known and respected journalist) says they’re not. One reason is because there are various factions of Al Queda. Is “terrorism” a corporate brand like Tesco’s? Not exactly. Obama is actually making terrorism worse thru his actions.

    Despite that, what’s the message that’s put out? Out of sight and out of mind. Guantanemo, Iraq and Afghanistan are OVER THERE, NOT HERE. Therefore, to many people that justifies torture and all the rest of it. Obama got re-elected. I’m safe in my home. So that must mean he knows what he’s doing. Actually no, it doesn’t.

    The MSM will never touch him because they’re terrified of being cut off, and Obama knows it and isn’t afraid to use that power. Another problem is that not all but many sites (excluding this one) where most of the comments have nothing to do with the original subject. It’s either spam or trolls having a go at each other. Whether it’s torture, climate change or something else, how can you have a rational discussion in that environment? You can’t.

    Not all but many people are naturally focused on personal survival. A job, not being homeless and ending up permenantly on benefits. While I’m sorry if someone has a disability and has to struggle to fight for and keep necessary benefits, you’re also talking about human decency and maintaining self worth. Are you a human being or just another statistic in a George Osborne report to Cameron?

    I’ve been homeless twice. I’m currently on some benefits as I look for the next jobs (probably at least two to cover the bills). Newark NJ’s mayor is trying to live on food stamps for one week. Frankly, that’s an insulting pr stunt to be spun for personal political gain. Yet, the MSM eats this stuff up.

    The fiscal cliff “negotiations” are purely political positioning down to literally the last second to make each side think they look good. The Simpson-Boles Report (and non-profit foundation) are just corporate fronts to benefit their sponsors. And they literally don’t care what they have to do to get that power.

    As for defense spending, everyone knows that there are lots of ways to hide spending so it doesn’t “officially” show up in one dept. Several key Congressional Democrats went to Guantanemo and actually wanted detainees to be tortured more. Now, why would any sane and rational human being say something like that? They actually think torture is a good thing. They’re only thinking about potential gains for their personal and their party’s power. They have military investments in their portfolio (Pelosi is worth over $100 million. John Kerry is the richest Senator at $350 million). Feinstein also have defense investments as well.

    Which means there’s NO personal incentive whatsoever for these powerful people to push to keep Guantanemo open? Don’t kid yourself. Of course there is.

    All that matters to not all but many is diversions. Black Friday spending was way up. The unemployment rate went down. Bin Laden is dead. Which means that everything is okay. Sorry, but no it’s not.

  9. Andy Worthington says...

    You don’t need to walk back anything, Jeff. What you wrote has been buzzing away inside my head all day. And you know, from how much I have lived with and been haunted and appalled by this story over the last seven years, how significant that is!
    There are good people. There are many millions of good people. The question, I think, is whether the casual exploiters and those who are indifferent wake up to how unacceptable their actions are, when we’re faced with the world in such a disastrous state.

  10. Andy Worthington says...

    Thanks, Tom. You’re certainly right about vested interests, but it also goes deeper, I think, as Jeff has been pointing out, in that some senior Democrats also knew what was happening, to some extent, during the Bush administration, but did nothing about it, and so they too are complicit in the war crimes committed at that time. Everyone who got away with their involvement in torture wants to make sure their escape from accountability is permanent. I don’t believe that’s possible forever – or at least, that it’s unlikely – but it makes the task far more daunting and probably much more long-lasting than anyone would have thought possible four years ago.

  11. Tom says...

    Well said. That being said, what’s your policy on people linking to/using your content in a non-profit way to help the cause? I think I asked you this on another post, but I can’t remember which one. Excuse the repetition.

  12. Andy Worthington says...

    No problem, Tom. I’m happy for my work to be shared, as that’s what the internet is all about. However, I obviously like to be credited, and linked to, and it’s also important that all internal links are maintained. That way, sharing is actually beneficial, as the more links a site has the more it is noticed by search engines. I did respond to this question elsewhere, but similarly, I can’t remember on which post it was!

  13. Thomas says...

    Of course there are a (very few) genuine terroists in Gitmo, and a few others who would turn terrorist because of how they were treated in Gitmo. How does one let out the innocent without accidently freeing the guilty? It’s rather like the Soviet gulags-most gulag prisoners were innocent, but some would have and should have been in prison under any regime.

  14. Andy Worthington says...

    What the government needs to do, Thomas, is to reassess the prisoners’ cases, but draw on other outside experts to make more balanced assessments. I await their call.
    The other thing would be to drop the military commissions and push for a transfer to the US for federal court trials for the handful of people accused of involvement in international terrorism, and to designate others as prisoners of war, so we can start discussing when the end of hostilities is/was for men mostly seized 11 years ago when the Taliban were still the government of Afghanistan, and bin laden was both alive and operating in Afghanistan.

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