The End of Guantánamo

The repatriation from Guantánamo of Salim Hamdan, a former driver for Osama bin Laden, to serve out the last month of his sentence for providing material support for terrorism in Yemen, will surely hasten the demise of the prison, as promised by President-Elect Barack Obama, even though the circumstances of Hamdan’s departure were as furtive and secretive as the long years of his detention. Speaking to the Los Angeles Times, his military defense attorney, Navy Lt. Cmdr. Brian Mizer, explained, “Attorneys should have many rights under this system, and so should an accused. But those just don’t happen at Guantánamo. The way things happen in Guantánamo is that your client is whisked away in the middle of the night and you find out about it in the newspapers.”

In August, Hamdan became the first prisoner of the United States to face a war crimes trial since the Second World War, and although opponents of the system of trials by Military Commission (dreamt up by Vice President Dick Cheney and his close advisers in November 2001) maintained their disdain for the entire system, pointing out that, amongst other defects, it allowed the judge to withhold all mention of evidence obtained through coercion, the verdict in the trial was a bitter blow for the government.

Prosecutors had hoped to secure a 30-year sentence for Hamdan, who was accused of conspiracy and providing material support for terrorism, but the military jury dismissed the conspiracy charge, accepting Hamdan’s claim that he was merely a $200-a-month employee, with no inside knowledge of the workings of al-Qaeda, and sentenced him to serve just five and a half years for providing material support for terrorism. When the judge, Navy Capt. Keith Allred, allowed for time served since Hamdan was first charged, it meant that he would be free by the end of the year.

The sentence infuriated the Pentagon, which refused to rule out the possibility that it would continue to hold Hamdan as an “enemy combatant” after his sentence was served, even though this was a concept that most dictatorships would blanch at pursuing. Unwilling to acknowledge that tampering with the results of a military system of its own devising would resemble the tantrum of a small child, the Pentagon then attempted to put pressure on Capt. Allred to reconvene the jury for a new sentence, arguing that he had no right to reduce Hamdan’s sentence for time served, but on October 30, in a terse response, Allred refused to be swayed, and declared, “The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied.”

Beyond demonstrating, however belatedly, that the Bush administration is actually capable of playing by its own rules, Hamdan’s release is also enormously significant for around half the remaining prisoners at Guantánamo. Regarded, as CBS News explained on November 14, as “too dangerous to release but not guilty enough to prosecute,” these prisoners — approximately 125 in total — are caught between the 50 or so prisoners who have been cleared for release but cannot be freed because of international treaties preventing the return of foreign nationals to countries where they face the risk of torture, and the 80 or so regarded as significant enough to face a trial by Military Commission.

However, although CBS News alleged that they could not be put forward for prosecution “because the evidence against them can not be used in court,” the reality is that these are prisoners against whom suspicions of militant activity or of sympathy for militant activity are largely unjustifiable because they are derived from the torture, coercion or bribery of other prisoners, or from the torture and coercion of the prisoners themselves.

The history of Guantánamo is permeated with dubious information, masquerading as evidence, which has been used by the administration to justify holding these men, but as is evident from the verifiable stories of numerous released prisoners, from investigations by their lawyers, from explosive statements made by military officers who worked on the tribunals at Guantánamo that were responsible for presenting the information that was used as evidence, from a study of Pentagon documents by the Seton Law School (PDF), and in my own research for my book The Guantánamo Files, the reason that much of this information is inadmissible is not just because of the manner in which it was gathered, but also because so much of it would not stand up to independent scrutiny, as has been demonstrated in the only two cases that have been reviewed by a US court: those of Huzaifa Parhat, cleared of being an “enemy combatant” in June, and five Bosnian Algerians, cleared of the charges against them in a District Court last week.

The conclusion is stark, but as true as it has ever been: hearsay evidence — whether obtained through kindness (better living conditions) or cruelty (the use of “enhanced interrogation techniques”) — is fundamentally unreliable, and at Guantánamo the liberal, even credulous acceptance of hearsay evidence has produced a catalog of farcical allegations that are simply untrue.

What this means, when the window dressing is removed, is that these 125 prisoners are regarded as less significant than Salim Hamdan, who was specifically chosen for a flagship trial because of his known proximity to Osama bin Laden. As a result, when Hamdan’s sentence comes to an end, one month from now, and he is a free man once more, reunited with his wife and children, it will, I believe, be impossible for the administration to justify holding these men any longer, and Barack Obama will, if he wishes, be able to highlight the absurdity of this situation to justify a speedy review leading to their release.

Significantly, over half of these prisoners are also from Yemen. A mixture of innocent men, seized and sold for bounty payments, and lowly foot soldiers for the Taliban, who were recruited to fight an inter-Muslim civil war that began long before the 9/11 attacks, they are among the 100 or so Yemenis at Guantánamo who have watched, over the years, as hundreds of prisoners from other nations were released, and the majority of the 130 Saudis were also repatriated, to be put through a bold rehabilitation program, involving religious reprogramming and psychological and financial support, that met with the approval of the US authorities. With the government of Yemen — a poorer and more fractured country than Saudi Arabia — unable to guarantee that returned prisoners would be put through a similar program, the Yemenis have languished at Guantánamo, despite the similarities, for the most part, between their stories and those of the Saudis.

Hamdan’s release indicates that negotiations between the Yemeni and US governments are now proceeding more fruitfully than before, and suggests that their repatriation — until now a major stumbling block to the closure of Guantánamo — may be only a matter of time.

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 also see my definitive Guantánamo prisoner list, published in March 2009.

As published on Antiwar.com, Global Research, ZNet and AlterNet.

Note: Hamdan’s prisoner number is ISN 149.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

And see the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the eleven prisoners released from February to June 2009, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs, 1 Iraqi, 3 Saudis (here and here).