“No Indefinite Detention at Guantánamo,” US Claims, Defying Reality

23.3.13

We live in surreal times. President Obama, who promised “hope and change,” has, instead, proven to be a worthy successor to George W. Bush as a warmonger and a defender of those in positions of power and authority who authorized the use of torture.

In addition, when it comes to another hallmark of Bush-era crimes — indefinite detention without charge or trial, for those that the Bush administration identified as “enemy combatants” — President Obama has gone further than his predecessor.

After the sustained paranoia of the first few years after the 9/11 attacks, President Bush found his policies challenged by the Supreme Court, and subjected to international criticism, and began to back down. Obama, however, having promised to close Guantánamo, but then having discovered that it was politically difficult to do so, has contented himself with finding justifications for continuing to hold the 166 men still at Guantánamo, possibly for the rest of their lives.

This is in spite of the fact that over half of them (86 men in total) were cleared for release by an inter-agency Guantánamo Review Task Force established in 2009 by President Obama himself, consisting of around 60 officials from the main government departments and the intelligence agencies, who met every week to examine the prisoners’ cases, and to decide who should be released, who should be tried, and — shockingly — who should continue to be held without charge or trial, on the basis that they were too dangerous to release, even though insufficient evidence existed to put them on trial.

That was unacceptable, as the supposed evidence is no such thing if it cannot be used in a court of law, and this injustice was compounded when President Obama issued an executive order, which, first of all, specifically authorized the indefinite detention of these men (48 in total, reduced to 46 when two of them died in the prison), and, secondly, promised them periodic reviews of their cases, which, as was reported in December, have not taken place two years later.

Worse still, though, is the realization that almost everyone still held at Guantánamo is being detained indefinitely without charge or trial. As well as the 46 mentioned above, most of the 30 or so men who were supposed to face trials will not do so, after the court of appeals in Washington D.C. –a notoriously Conservative court — nevertheless quashed two of the only convictions achieved in the military commission trial system, after pointing out that the alleged crimes — providing material support for terrorism and conspiracy — were not crimes when the legislation was enacted, and are not recognized war crimes.

Moreover, the 86 men cleared for release are not going anywhere either. When Umar Farouk Abdulmutallab, a Nigerian man recruited in Yemen, tried and failed to blow up a plane bound for Detroit on Christmas Day 2009 with a bomb in his underwear, President Obama responded to the hysteria that greeted this news by announcing a ban on the release of any Yemeni prisoners at Guantánamo, which is still in place over three years later.

This is in spite of the fact that two-thirds of the men the President’s own Task Force recommended for release are Yemenis, and even though continuing to hold them constitutes imprisonment by nationality alone. If the tables were turned, and some other nation was holding Americans solely on the basis of their nationality, having undertaken a process that had previously led to them being recommended for release, there would be national outrage.

The rest of the cleared prisoners have had their releases blocked by Congress, where lawmakers have imposed onerous conditions on the release of prisoners, primarily obliging the defense secretary to guarantee that any prisoner released to a country they regard as dangerous will not be able to engage in any kind of anti-American activities — a condition that seems to be impossible to fulfill.

However, instead of standing up to Congress, or revisiting his ban on the Yemenis, President Obama has been content to retreat to the safety of the laws passed under his predecessor to justify the detention of prisoners seized in the “war on terror” — in particular, the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which gave the President the right to pursue anyone he deemed to be connected to 9/11, al-Qaeda and/or the Taliban and imprison them. In 2004, the Supreme Court confirmed that the President’s power to detain prisoners under the AUMF was until the end of hostilities — whenever that might be in a seemingly unending “war on terror.” When courage was required, President Obama retreated into a shell and comforted himself that the AUMF means that he can continue to hold everyone at Guantánamo, for the rest of their lives, if no one makes it a pressing concern for him do anything about the men abandoned on the naval base in Cuba, and if lawmakers continue to make life difficult for him.

Just last week, attorneys for the prisoners at the New York-based Center for Constitutional Rights, tried to break through this deadlock by calling the Obama administration to account at the only location available to them –  the Inter-American Commission on Human Rights (IACHR), part of the pan-American Organization of American States (OAS), based in Washington D.C. Although the IACHR cannot compel the US to do anything it doesn’t wish to do, it was, at least, as  the IPS News Agency reported, “the first time since President Barack Obama’s re-election that the US government has had to publicly answer questions concerning Guantánamo Bay.”

IPS added, “Legal representatives for the detainees also presented disturbing eyewitness accounts of prisoner despair at the facility, brought on by prolonged indefinite detention and harsh conditions that has led to a sustained hunger strike involving more than 100 prisoners at the US base in Cuba,” which I reported here two weeks ago, when the government was claiming that there was no hunger strike. By last week, when the hearing took place, the growing media interest in the story had led to a concession that there were now 14 hunger strikers, and, by Wednesday this week, that number had risen to 25.

Although the IACHR has repeatedly called for the closure of the prison at Guantánamo Bay, and has requested permission to meet with the prisoners, its requests have been ignored. last week’s hearing was to enable the IACHR to learn more about what attorney for the men held at Guantánamo described as an “unfolding humanitarian crisis” and, as IPS put it, “calling for an end to ongoing human rights violations they say are being committed against the detainees.”

As well as attorneys, the commission heard “testimony from experts in law, health and international policy, covering the psychological impact of indefinite detention, deaths of some suspects at Guantánamo, the lack of access to fair trials, and US policies that have restricted the prison’s closure.”

Omar Farah, a staff attorney at CCR, told IPS, “In the 2008 campaign, both [John] McCain and Obama were squarely opposed to Guantánamo and agreed that this ugly hangover from the Bush/Cheney era had to be abandoned. But four years later, the political whims have completely reversed and there is almost unanimity that Guantánamo needs to remain open aside from occasional platitudes from the president.”

Farah was, however, “clear in his view that reversing this trend is still well within President Obama’s power.” As he stated, “This is something that really calls for leadership from the president — he needs to decide if he wants Guantánamo to be part of his legacy. If the US isn’t willing to charge someone in a fair process and can’t produce proper evidence of their crimes, then those prisoners have to be released. There is just no other way to have a democratic system. We’ve never had this kind of an alternative system of justice, and yet that’s what we have in Guantánamo.”

Despite the litany of complaints against President Obama — his broken promise to  close Guantánamo, the continuation of of indefinite detention without charge or trial, the use of discredited military commissions, a refusal to hold anyone accountable for torture, and his embrace of drone strikes, a form of extrajudicial assassination from afar, as a replacement for any form of detention — the State Department’s representative last week, Michael Williams, a senior legal advisor, refused to accept that anything was amiss.

As IPS described it, he “made extensive note of the health facilities and services that the US government has made available for the detainees,” but, as the Miami Herald described it, he refused to answer a direct question by IACHR Commissioner Tracy Robinson, of Jamaica, about “whether the administration had any specific plans to close the camps.” Instead, he “reverted to his notes about the administration’s efforts to transfer detainees,” stating that the administration “remains committed to transferring to other countries detainees at Guantánamo who’ve been cleared for release” — although not, evidently, the Yemenis, as he also said that the administration has no plans in the “foreseeable future” to lift the moratorium on transferring Yemenis cleared for release that the President announced in January 2010.

Wiliams also refused to accept that indefinite detention was taking place at Guantánamo. He claimed, as IPS described it, that the United States “only detains individuals when that detention is lawful and does not intend to hold any individual longer than is necessary.”

Kristine Huskey, a lawyer with Physicians for Human Rights, was appalled. “The hopelessness and despair caused by indefinite detention is causing an extremely pressing and pervasive health crisis at Guantánamo,” she told IPS, adding, “A person held in indefinite detention is a person deprived of information about their own fate. They are in custody without knowing when, if ever, they will be released. Additionally, they do not know if they will be charged with crimes, receive a trial, or ever see their families again. If they have been abused or mistreated, they also do not know if this will happen again.”

For Omar Farah, Williams’s testimony was “very disheartening” and “shocking.” As he explained, “They [the US government] explicitly denied that there is indefinite detention, despite the fact that most of the prisoners there have been there for more than a decade without charge or trial.”

Farah added, “We are looking for the IACHR to remain actively engaged and hope that they will continue to put pressure on the US government to comply with their international legal obligations toward these prisoners.”

While the hunger strike continues to rage, it may be that international pressure — not just from the IACHR, but from other concerned bodies, from media organizations, and from concerned citizens — may stir President Obama from his inertia. It is to be hoped for, as it is also to be hoped that some just resolution can be found before any other prisoners die, like Adnan Latif, the Yemeni who died last September and was the ninth prisoner to die at the prison.

Note: For further information, see the CCR page on the hearing, which contains links to numerous documents.

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, 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.

23 Responses

  1. Andy Worthington says...

    On Facebook, Kathryn M Blackwood wrote:

    I have just started reading your book, Andy. I need to educate myself on this subject.

  2. Andy Worthington says...

    That’s very nice to hear, Kathryn. Thank you. I believe it still provides a very thorough background to the story of the prison and the prisoners, and the abuses that have taken place there.

  3. Dr Rita Pal says...

    One of your best. Like the clarity.

    Rita

  4. Andy Worthington says...

    Thank you, Rita. That’s very good to hear.

  5. Andy Worthington says...

    Mark Matthews wrote:

    Puppet Obama cannot do anything.

  6. Andy Worthington says...

    Well, I’ll keep pushing him anyway, Mark. No one else is pretending to be the President of the United States right now.

  7. Andy Worthington says...

    Ghaliyaa Haq wrote:

    Kathryn that’s great! It is a fantastic book, I’m glad you’re reading it! After that I would pick up Moazzam Begg’s book “Enemy Combatant”.. and I have a whole list of good ones, and you are starting out with the perfect book! That will give you a really good picture of things, and you can go from there. The more people are outraged the better our chances of getting people to protest! Are you in the UK, or US? The UK is great as far as activism, but the US… not good, at least not for this issue, I’m afraid. There are a few but as for the numbers that are needed … I don’t know why but people just don’t want to get involved with this. Sure it’s a tough topic, it’s sad, and it’s not likely to be easy or much fun.. but it has to happen.. we cannot go on like this. We just can’t.

  8. Andy Worthington says...

    Thanks, Ghaliyaa, for the supportive words and your explanation, from the heart, about why action on Guantanamo is so desperately needed.

  9. Hunger Strike in 6th Week at US’ Obama Torture Center at Guantanamo Bay: “No one is accepting food from prison authorities” | Independent Workers Party of Chicago says...

    [...] and proceeded to manhandle the prisoners’ Korans.   86 of the prisoners were supposedly “cleared” for release back in 2009 (!) only to have that hope viciously dashed by the Democratic Party uber-commandant of the torture camp [...]

  10. Andy Worthington says...

    David Knopfler wrote:

    I think the Pentagon gave their thoughtful response… http://atwar.blogs.nytimes.com/2013/03/21/pentagon-wants-to-build-new-prison-at-guantanamo/
    What are the odds that Halliburton get the contract? Revolving doors between contractors and the Pentagon at play? In a sane world the people who spend taxpayers money on sh*t like this would be the ones heading to GTMO.

  11. Andy Worthington says...

    Alces Acres wrote:

    Americans seem to love spending $$$ on stupid, immoral things but not on the obvious ‘human’ things!… I’ve almost given up on them.

  12. Andy Worthington says...

    And not just America. The prevailing trend in western politics is to put the people last. Profits for corporations are all that count.

  13. Andy Worthington says...

    Alces Acres wrote:

    Meet Mammon, God of Capitalism.

  14. Andy Worthington says...

    Yes indeed, Alces. Oh, and thanks, David, for the link. Such huge amounts of money to maintain what shouldn’t exist, and that continues to corrode what shards are left of America’s moral compass with every day that it remains open.

  15. Tom says...

    How come many in the States don’t seem to care about this? You can expand that to lots of other important issues as well, because it’s the same thing. Not to all. but to many it’s a matter of priorities. What’s more important? My not being jobless, homeless and starving? Or, somebody in some far away prison that I know almost nothing about?

    That doesn’t mean that many aren’t aware, that nobody cares, or that what people do on this site isn’t important. Most people that I see everyday are concerned with survival. Unemployment here is almost 15%. Obama and the other rich and powerful Powers that Be know that that struggle to survive is why millions aren’t in the streets everyday and flooding prisons. They’re counting on that to maintain their current “policies”.

  16. Andy Worthington says...

    Yes, survival is one explanation why people are so silent, Tom, but it’s a peculiar time in history, because, in living memory – in the 60s, 70s, 80s and even the 90s – people used to be much, much more motivated to complain and protest and agitate than they are now. Materialism, cheap comfort food and the triumph of the “me” generation – the obsessive selfishness of the current world – must also have a lot to do with it. It’s very worrying, because no one should really believe that the people who want power and money have our interests at heart, when they almost always don’t.

  17. Tom says...

    Fair points all around. Also, I cancelled the regular TV half of my cable subscription about a month ago. And no surprise, I do feel better in some ways. If I have to watch something, I can do it online.

  18. Tom says...

    Sounds like a mix of both.

  19. Andy Worthington says...

    Yes, I think so, Tom. And I also feel better having unchained myself from the tyranny of 24-hour rolling news.

  20. Tom says...

    What’s one aspect of this that I’m struggling with? The growing sense to not all but many that as long as I’m safe, that’s all that matters. Safe from “terrorists”, safe from the scary parts of town (and said people in those areas), and more. It’s like Bush Jr.’s famous quote re: the Constitution. It’s just a ______ piece of paper.

  21. Andy Worthington says...

    Yes, it’s completely illogical, Tom. People have forgotten – if they ever knew – how to think independently, and to be sufficiently suspicious of authority. In uncertain times, as these are, people have become fearful and have allowed themselves to be infantilized by their governments and by corporations. They provide the toys and distractions, and they promise to look after their children. I really hope people stat to wake up in significant numbers over the next few years, or I fear for our future in the so-called western liberal democracies. A form of fascism will take over.

  22. Thomas says...

    The people are sheeple. They do nothing for a long time,and when they do wake up it’s to get involved in violent stupid rioting before going back to sleep again.

  23. Andy Worthington says...

    That’s true of some people, Thomas, and I despair of that sort of ignorance, but I’m also appalled by the selfishness of the aspirational middle classes as well. Too much self-obsession all round …

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