When Justice Fails: US Refuses to Confirm that Shaker Aamer Will Be Freed from Guantánamo

I wrote the following article for the “Close Guantánamo” website, which I established in January with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email. Also, if you’re a UK citizen or resident, please sign the e-petition to the British government calling for the immediate release of Shaker Aamer, the last British resident in Guantánamo, and also please sign the international petition, which anyone can sign.

On the eve of the Presidential election in the United States, it remains disgraceful that the injustices of the George W. Bush years still persist, with torturers officially protected, and President Obama’s promise to close the “war on terror” prison at Guantánamo unfulfilled and largely unmentioned.

The failure to close Guantánamo is compounded, as we have been reporting since establishing this campaign and website in January, by the fact that 86 of the remaining 166 prisoners at Guantánamo were cleared for release in 2009 by the Guantánamo Review Task Force, which consisted of around 60 officials from the main government departments and the intelligence agencies, who reviewed all the prisoners’ cases before reaching their careful conclusions. In addition, many of these men were also cleared for release under the Bush administration — in some cases, as long ago as 2004.

It is certainly true that lawmakers have intervened to prevent President Obama from releasing prisoners, but the President has also persistently failed to seize the initiative, refusing, in 2009, to back a plan to bring cleared prisoners who could not be safely repatriated to live in the US (the Uighurs, persecuted Muslims from China), and, in January 2010, issuing a moratorium on releasing any cleared Yemeni prisoners from Guantánamo.

This came about as a result of the hysteria that followed the capture of a Nigerian man, Umar Farouk Abdulmutallab, recruited in Yemen, who had tried and failed to detonate a bomb in his underwear on a flight into the US on Christmas Day 2009. The moratorium was profoundly unjust, tarring all Yemenis as terrorist sympathizers, and it is outrageous that it still stands, nearly three years after being introduced.

The majority of the cleared prisoners still held — 56 of the 86 — are Yemenis. 30 were placed in “conditional detention” by the Task Force, a category invented specifically for them, which depended on a perceived improvement in the security situation in Yemen that was not defined. However, after the Abdulmutallab incident and the moratorium, all the Yemenis were, essentially, stuck in the same endless limbo of “conditional detention.” Just one Yemeni has been released since the moratorium was announced, and, in September, disgracefully, one of the cleared men, Adnan Latif, died, three years after he was cleared for release under the Obama administration, and six years after military officials recommended his release under President Bush.

The Yemenis are not the only victims of the disgraceful inertia when it comes to releasing prisoners cleared for release. Of the 30 others, 29 were included in a list of 55 cleared prisoners made publicly available as part of a court case by the Justice Department in September, and they hail from Afghanistan, Algeria, China, Libya, Mauritania, Morocco, Palestine, Saudi Arabia, Sudan, Syria, Tajikistan, Tunisia, the United Arab Emirates and the UK.

Some of these men can — and ought to be — released immediately, as should the Yemenis, of course, and those who cannot be safely repatriated (the Uighurs, for example) should be given new homes in the US, if no other country can be found that is prepared to take them.

The urgent need for Shaker Aamer to be freed from Guantánamo

One of the men who is still held but whose ongoing detention is inexplicable is Shaker Aamer, the last British resident in the prison, whose name was included in the list of 55 cleared prisoners. Although Congress acted to prevent the release of prisoners to countries regarded as a threat, there is no way that the UK — America’s closest ally in the “war on terror” — could be regarded as a threat, and it has long been considered, by Shaker Aamer’s lawyers, and by others following his case — that he continues to be held because, as a charismatic and articulate man, who has persistently fought for the rights of the prisoners, his release will be embarrassing, as he will speak out about his experiences, and his knowledge of the horrors of Guantánamo and other prisons in the “war on terror.”

Since it became public knowledge that Shaker Aamer was on the US government’s list of 55 prisoners cleared for release, the pressure on the British government to secure his release has increased, because, as is readily apparent, there is no possible excuse for his imprisonment to continue.

Nevertheless, as The Hill reported this week, Shaker Aamer’s release is still a topic hedged in with all kinds of supposed obstacles.

The Hill reported that, on Tuesday, the British foreign secretary William Hague told Parliament that senior Obama administration officials had stated that Shaker Aamer “could be set free” under the National Defense Authorization Act.

Hague said, “Senior US officials have confirmed that the National Defense Authorization Act 2012 has the potential to make Mr. Aamer’s release more likely than the act of the previous year, but no releases have yet taken place under that act and the criteria for the national security waiver remain unclear.” He added, “We will certainly be pursuing this with the reelected or incoming US administration.”

The Hill proceeded to argue, incorrectly, that Shaker Aamer “is one of 56 detainees cleared for release by the executive branch who have so far failed to meet the requirements imposed by Congress in annual spending bills.” This was incorrect for two reasons: firstly, because the number on the list released by the Justice Department is 55, and not 56; but secondly and more importantly because, to prevent his release, lawmakers would have to argue that the UK is a terrorist threat, or that former prisoners freed in the UK are “recidivists”; in other words, that released British prisoners have “returned to the battlefield.” Britain, of course, is not a terrorist threat, and there is no evidence that any former British prisoner has engaged in activities that constitute a threat to the United States.

As The Hill also noted, the National Defense Authorization Act 2012, which was signed into law by President Obama on New Year’s Eve last year, “continues to require the Secretary of Defense to vouch that released prisoners won’t pose a threat to the United States if they’re transferred to another country,” in addition to the restriction on releasing alleged recidivists, as noted above.

However, that provision — Section 1028 — was, as The Hill also explained, and as Tom Wilner explained in an article for “Close Guantánamo” in January, watered down to allow the Secretary of Defense — and the President — the opportunity to bypass Congressional restrictions if they regard it as being in America’s best interests.

Under the waiver, the administration can release prisoners if the Secretary of Defense certifies that “alternative actions will be taken” to “substantially mitigate the risk of recidivism with regard to the individual to be transferred,” and if “the transfer is in the national security interests of the United States.”

The waiver has never been used, which is a great disappointment, but there is no excuse for it not being used as soon as possible to secure the release of Shaker Aamer. The truth is that there has been no excuse for his continued detention, at least since the National Defense Authorization Act 2012, with its waiver, was signed into law on New Year’s Eve last year. As a result, the greatest disappointment in The Hill’s reporting about Shaker Aamer is the claim that he “could be set free” after the election, and not that he “will be set free.”

If justice is to mean anything again in the United States, Shaker Aamer must be released as soon as possible, to rejoin his British wife and his four British children in London, and the other cleared prisoners must also be freed as soon as possible.

The candidates’ silence on the cleared Guantánamo prisoners — and the mainstream media’s refusal to make an issue of it — shames America, and that shame will continue until Shaker Aamer and the other cleared prisoners are free men.

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.