100 days after the majority of the remaining 166 prisoners in Guantánamo embarked on a hunger strike, and after a weekend of actions in the US, the UK and elsewhere to highlight the continuing injustice of the prison, the world is waiting — again — to hear from President Obama.
As news of the hunger strike filtered out of the prison in late February, and, throughout March, spread like wildfire throughout the world’s media, attracting criticism of the administration from the International Committee of the Red Cross and the United Nations, as well as critical coverage in the US, President Obama remained silent.
Three weeks ago, President Obama finally broke his silence, delivering a speech at a news conference in which, as I explained here, he eloquently explained why Guantánamo is such an abomination, but failed to accept his own responsibility for the prison’s continued existence, blaming Congress and claiming that all he could do was to go back to lawmakers to seek their cooperation.
Whilst it is certainly true that lawmakers have raised huge obstacles to prevent the release of prisoners and the closure of the prison, it is also true that President Obama personally imposed a ban on releasing any of the cleared Yemenis who make up 56 of the 86 men still held whose release was recommended by the President’s own inter-agency task force back in January 2010, following a failed airline bomb plot on Christmas Day 2009, which was hatched in Yemen.
In addition, although lawmakers have imposed a seemingly insurmountable restriction on the release of prisoners in the last two National Defense Authorization Acts, at the end of 2011 and 2012 — insisting that the Secretary of Defense certifies that any released prisoners will not be able to pose a threat to the US in future — there is a waiver in the legislation, which allows the administration to bypass Congress if officials regard it as being “in the national security interests of the United States.”
In the NDAA (following previous successful actions to stop prisoners from being transferred to the US mainland for any reason, even to face federal court trials), lawmakers enacted legislation to prevent prisoners from being released if there was a single claim that anyone previously transferred to their home country “had subsequently engaged in any terrorist activity” (making the country in question a “recidivist country”) and also banning the release of prisoners to any other country unless the Secretary of Defense issued a certification personally “ensur[ing] that the individual [transferred] cannot engage or reengage in any terrorist activity.”
The waiver — allowing the release of prisoners if the President and the Secretary of Defense regard it as being “in the national security interests of the United States” — was introduced specifically by Sen. Carl Levin, the chair of the Senate Armed Services Committee, who, on May 9, sent a letter to President Obama, via his legal counsel, reminding him of this fact.
“[M]ore than a year ago,” Sen. Levin wrote, “I successfully fought for a national security waiver that provides a clear route for the transfer of detainees to third countries in appropriate cases, i.e., to make sure the certification requirements do not constitute an effective prohibition.”
Sen. Levin added, “I urge the President to appoint an official inside the White House to spearhead an interagency effort to determine which of the more than eighty detainees who have already been cleared for transfer by the Guantanamo Detainee Review Task Force meet the certification (and waiver) requirements, and to actively work for their transfer. High level leadership on detainee transfers is critical to advancing the goal of closing GITMO.”
On Thursday, in a major speech at the National Defense University, President Obama will lay out his plans for Guantánamo in a speech that, as the Washington Post described it, will explain “how he intends to bring his counterterrorism policies, including the drone program and the military prison at Guantánamo Bay, Cuba, in line with the legal framework he promised after taking office.”
On Saturday, a White House official specifically told the Post that President Obama will “discuss our broad counterterrorism policy, including our military, diplomatic, intelligence and legal efforts.,” and that, as part of that discussion, “he will review our detention policy and efforts to close the detention facility at Guantánamo Bay.”
Whilst it would be unwise to try and guess what the President will say, it is to be hoped that he will have taken Sen Levin’s advice about the need to appoint a high-level official to deal with Guantánamo, and the need to release cleared prisoners.
Similar encouragement was provided last month by Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, who wrote to National Security Director Tom Donilon on April 25 urging the Obama administration to “renew its efforts to transfer out the 86 detainees at the Guantanamo Bay who were cleared for transfer by the Executive Branch’s interagency Guantanamo Review Task Force over three years ago,” and also called for an official to be appointed “with the specific responsibility to achieve the conditions necessary to close Guantanamo.”
One reason to be cautiously optimistic is that, last Tuesday, Attorney General Eric Holder told a news conference that, as Reuters reported it, the government “intends to revive a vacant position coordinating policy” for the prison at Guantánamo Bay. “We’re in the process of working on that now. We’re looking at candidates,” he said.
The day after, Eric Holder went further. As the Guardian explained, he “hinted” that the Obama administration “may be planning to act on Yemeni prisoners held at Guantánamo Bay.” This, the Guardian noted, “would make a big dent in the overall number of Guantánamo detainees,” adding, “The failure to free Guantánamo prisoners who have been cleared for release is one of the main reasons for the continuing hunger strike.”
In a hearing on Capitol Hill on May 15, when Holder was asked about Guantánamo, he stated that “his preference remained to close the facility but that Congress had blocked that option” — the standard response that shields the administration from blame — but, significantly, he also “said the Obama administration was looking at sending detainees who have been cleared back to their own countries and declared that the block on Yemenis was under review.”
This welcome piece of news suggests a U-turn on the moratorium on releasing Yemenis, issued three years and four months ago, which officials said, just three weeks ago, remains in place, even though it is one of the most disgraceful aspects of Obama’s detention policy at Guantánamo — holding men cleared for release by his own task force simply on the basis that their home country is regarded as dangerous, and imprisoning them indefinitely to prevent what they may do at some point in future.
Last weekend, Eric Holder also criticized Congress for blocking the transfer of prisoners from Guantánamo to the US to face trials, perhaps indicating a move to abandon military commissions (recently discredited by Conservative judges in the Court of Appeals in Washington D.C.) and push for federal court trials for the small number of prisoners who can be charged with crimes. Holder was a passionate advocate of federal court trials for the alleged 9/11 co-conspirators and a few other other alleged terrorists held at Guantánamo until the plan was derailed in 2011, when the President bowed to pressure and dropped the planned 9/11 trial in New York.
Delivering a commencement address at the University of California Berkeley School of Law last weekend, Holder criticized lawmakers who “placed unwise and unwarranted restrictions on where certain detainees could be housed, charged and prosecuted” He added, “Let me be clear: those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion. They are simply wrong.”
Note: As we wait for President Obama’s speech, please keep up the pressure on the administration. Sign and share the petition on Change.org, which already has over 200,000 signatures. Please also call the White House (202-456-1111, 202-456-1414), US Southern Command (305-437-1213) and the Department of Defense (703-571-3343). You can say, “I support closing the prison at Guantánamo Bay. President Obama can and should resume transfers, today, for the 86 cleared prisoners who are still held. Indefinite detention without charge or trial is a human rights violation.”
Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).
To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the four-part definitive Guantánamo prisoner list, “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.
On Facebook, Frances Madeson wrote:
Dribs and drabs, those bastards.
Good to hear from you, Frances. I know what you mean, although actually we haven’t even had dribs and drabs for the last two years and nine months – the last release of prisoners as a result of being cleared (rather than by court order or a plea deal in the military commissions) was in August 2010.
Here’s a reminder of that: http://www.andyworthington.co.uk/2010/09/21/who-are-the-two-guantanamo-prisoners-freed-in-germany/
And since then? Just five prisoners have been released alive, and three died.
Pauline Kiernan wrote:
Dejanka Bryant wrote:
Terrible what you just wrote, Andy. Only five and 3 dead.
Thanks for sharing, Pauline, and Dejanka, yes, that’s the awful truth. Since President Obama banned the release of Yemenis, Congress imposed essentially insuperable restrictions on the release of prisoners, and Obama decided it wasn’t worth spending political capital fighting back, the remaining men have been entombed, watching their hopes fade away little by little.
Obama, it seems, is slowly and painfully learning that you can’t get away with political expediency when it involves the monstrous failure of justice that is Guantanamo and the lives of men who, though small in number, should not be sacrificed because their fate is politically difficult and not enough Americans actually care about them.
European Parliament to debate Guantanamo hunger strike, hours before Obama gives his speech.
Andy, thanks again for keeping this important issue before the public.
Andy, someone named Geoffrey Cowley wrote a recent article at MSNBC that contained some interesting challenge to the legality of force-feeding the captives at Guantanamo.
A lot of US commentators have dismissed claims that the International medical community has denounced the involuntary force-feeding of captives, saying the Guantanamo authorities are merely following the same protocols of the US Bureau of Prisons.
A couple of quotes:
So yes, U.S. courts have authorized some domestic prisons to force-feed inmates. And yes, the U.S. Prisons Bureau has developed a protocol to standardize the practice. The protocol says that “treatment is to be given and documented in accordance with accepted medical practice”—an odd avowal since the “treatment” itself violates accepted medical practice. The document also cautions that none the procedures it outlines “are meant to limit or override the exercise of sound medical judgment by the physician responsible for medical care.”
So Colwell has drawn important distinctions between BoP force-feedings and Guantanamo force-feedings. The Guantanamo force-feedings are “violating medical practice”, and medical staff have subordinated their judgment to that of their military superiors.
Colwell points out something most US commentators overlook — that the Guantanamo captives aren’t convicts.
Would a domestic court agree that a foreign national, held offshore without charges, is legally equivalent to a Connecticut resident convicted of spousal abuse?[The US ruling that allowed force-feeding was before the Connecticut Supreme Court.] Stephen Vladeck, a professor of constitutional and national-security law at American University, is skeptical. “The Turner v. Saffley decision is specific to prisoners who have had their day in court, and who therefore have fewer (and weaker) constitutional protections,” he says. As a legal matter, it’s not clear what rights a Guantánamo detainee enjoys under the U.S. Constitution. But it’s even less clear that the administration can revoke those rights by fiat.
Andy, with your permission, I’d like to repeat a point I’ve tried to argue before. I think the USA has reacted inappropriately to fears that the release of men who weren’t terrorist before they spent a decade without charge experiencing abusive treatment that in many cases crossed the line right into genuine torture may try to retaliate violently to get back for their mistreatment.
Those who observe or are involved with civilian courts accept, albeit with bad grace sometimes, that suspects should sometimes be freed on “technicalities” — like that their interrogators didn’t let them talk to a lawyer, or wiretaps or bugs were implemented without first obtaining a warrant. Here in Canada suspects can get their charges dropped, even when prosecutors are sure they are guilty, if the delay between their arrest and their day in court had been too prolonged — because they had been denied their right to a speedy trial. Maybe this happens in the US and the UK as well.
Of course, for many Guantanamo captives the “technicality” was that they were actually innocent civilian bystanders all along.
I think a key reason the USA is not prepared to release innocent men, and to release men who had no association with terrorism prior to their detention, is the idea that they can’t do anything that could lead to even one more US death.
We have to take risks all the time, because avoiding one risk almost always implies taking a different risk.
The decision to risk that secret detention, indefinite detention without charge, detention under brutal conditions, and abusive interrogation and torture might radicalize men who turned out to innocent, and would eventually have to be released, was made over ten years ago.
The way I see it, the USA should see itself as having no choice over releasing men who turned out to have been innocent bystanders — even if they had been radicalized by their tortuous detention.
Americans used to call the reduction in speed limits to 55 the “double nickel”. It was set in place to save energy, and an unexpected side effect of reduction was a significant statistical reduction in traffic fatalities.
The decision to restore higher speeds implied an acceptance that more motorists and nearby pedestrians would die. Potentially, any politician who played a role in restoring higher speed limits could routinely being button-holed by surviving relatives of those traffic fatalities, who blamed them for those deaths.
It seems to me that the officials who honored the rule of law, and released the innocent torture victims, are not the ones who should be held responsible if the former captives were in fact radicalized and went on to commit crimes. Rather, the responsible officials would be those who authorized the illegal detention and illegal torture in the first place, just as the traffic fatalities lay with those who restored the higher speed limits.
Of course having been tortured doesn’t legitimize committing crimes to get even. I’ve thought those who advocate torture because they want to get even for 9-11 have forgotten the lesson we should all have learned in nursery school — two wrongs don’t make a right. And torture shouldn’t make torture victims think they are entitled to commit crimes to retaliate either.
Given the fear that former captives may want to retaliate, what can the USA do to reduce this fear?
(1) I suggest apology and full acknowledgment that the extrajudicial detention, extraordinary rendition, abusive treatment, coercive interrogation and torture were all extremely serious crimes would help reduce the risk former captives tried to retaliate.
(2) I suggest a meaningful lump sum compensation could help reduce the risk former captives tried to retaliate. It should be retroactive, for all former captives except for the limited number of genuine “recidivists”.
(3) I suggest helping set in place a program to help re-integrate the former captives so they could fit into ordinary society would help. This could start now, in case there are delays to the actual release.
(4) A pension is also in order. We read, during those 66 McClatchy interviews, how many captives had their spirit broken by the camps, and were deeply depressed. Many of these men will never be able to hold down a job again, even if the prejudice against former captives was lifted by a full admission by a US President that almost all the men were innocent of terrorism.
We read signs, in the CSR Tribunal transcripts, that some of the captives had already had mental health problems, prior to heading to Guantanamo. We read that they knew they were ill, but came from cultures with no meaningful tradition or ability to treat those with mental health issues. We read how, when their relatives patience was exhausted, they pushed them to go to a war zone, and fight, and martyr themselves in that fight.
I think the third group of captives, who US analysts know they can’t charge, but whose release they don’t think they can release, includes captives who sanity broke in detention. I am afraid they fear releasing captives who they drove crazy because they fear those individuals would be the most vulnerable to being talked into being suicide bombers, because being crazy is terrible in cultures with no acceptance of mental instability. But, if these captives were receiving a pension large enough their care was no longer an intolerable strain on their familiy, if the pension was large enough that their care was of a net benefit to their family, their family would resist outsiders trying to recruit them to be suicide bombers, rather than encouraging them, so the burden of their care would be over.
Fascinating, arcticredriver. Thanks for that.
Thanks for reminding me, Curt. My friend Anna let me know over the weekend, while I was away, and I’ve just found the time to post something: http://www.andyworthington.co.uk/2013/05/22/european-parliament-to-debate-motion-calling-for-closure-of-guantanamo/
As ever, arcticredriver, thanks for your considered and important comments.
This is a wonderful explanation of what is historically wrong at Guantanamo, and what needs doing now.
I’m particularly impressed by your comments about the reasons why prisoners must be released, why it is unacceptable to hold people because of a completely unrealistic desire for zero recidivism, and your comment, “We have to take risks all the time, because avoiding one risk almost always implies taking a different risk.”
Here is something interesting — Carol Rosenberg reports that the reports of how many hunger strikers there are does not include the 15 “high value detainees” in Camp Platinum.
Interesting, arcticredriver. And today Reprieve claims that 140 and not 130 of the prisoners are on the hunger strike: http://www.andyworthington.co.uk/2013/05/23/as-guantanamo-prisoners-send-pleas-to-president-obama-media-reports-plans-to-free-86-men-long-cleared-for-release/
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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