United Nations and New York Times Call for Closure of Guantánamo and End to Indefinite Detention

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 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.

The ongoing hunger strike at Guantánamo is now in its third month, and shows no sign of coming to an end. As stories have emerged from the prisoners, via their lawyers, we have learned that it was inspired by deteriorating conditions at the prison, and by the prisoners’ despair at ever being released.

Their despair, sadly, is understandable.

Although 86 of the remaining 166 prisoners were cleared for release at least three years ago by an inter-agency Guantánamo Review Task Force established by President Obama, they are still held because of cynical Congressional obstruction, and weakness on the part of President Obama — in particular through his failure to close the prison, as he promised when he took office, and because of a ban he imposed in January 2010 on releasing any cleared Yemenis, who make up two-thirds of the cleared prisoners, which he issued in the wake of a failed bomb plot involving a Nigerian man recruited in Yemen.

In addition, the other 80 prisoners also have legitimate grievances against the Obama administration and Congress. 46 were designated for indefinite detention without charge or trial by the Task Force, on the outrageous and unjustifiable basis that they are too dangerous to release, even though insufficient evidence exists to put them on trial. This means that the so-called evidence is fundamentally untrustworthy, but two years ago President Obama issued an executive order authorizing their indefinite detention, which he tried to make palatable by promising periodic reviews of the men’s cases. These, however, have not materialized.

The rest of the men were recommended for trials by the Task Force, but they too have largely fallen by the wayside. Just six men are currently facing pre-trial hearings for their planned trials by military commission at Guantánamo, and most of the charges that others would face — providing material support for terrorism, and conspiracy — were dismissed by conservative appeals court judges in recent months, discrediting the commissions but effectively consigning those who would have been put forward for trials to indefinite detention.

Whether by accident or design, therefore, indefinite detention is what unites all the prisoners, and defines President Obama’s stewardship of the wretched facility that he inherited from George W. Bush. It is time for the President to put aside what appears to be his indifference towards securing the closure of the prison, to drop the ban on releasing any cleared Yemenis, to push Congress to work with him regarding the release of other prisoners, and to initiate a genuinely objective analysis of the dangers allegedly posed by the other prisoners, to begin the necessary movement towards the closure of the prison.

Criticism of President Obama by Navi Pillay, the UN High Commissioner for Human Rights

To this end, it is heartening that high-level criticism of the President — both internationally and domestically — has increased noticeably in the last week. On April 5, Navi Pillay, the UN High Commissioner for Human Rights, spoke out.

In a statement, she “urged all branches of the United States Government to work together to close the Guantánamo detention center,” saying that “the continuing indefinite incarceration of many of the detainees amounts to arbitrary detention and is in clear breach of international law.”

Noting that “around half of the 166 detainees still being held in detention have been cleared for transfer to either home countries or third countries for resettlement,” and that others “have been designated for further indefinite detention,” she pointed out, “Some of them have been festering in this detention center for more than a decade. This raises serious concerns under international law. It severely undermines the United States’ stance that it is an upholder of human rights, and weakens its position when addressing human rights violations elsewhere.”

Commenting on the hunger strike, Navi Pillay said that “a hunger strike is a desperate act, and one which brings a clear risk of people doing serious lasting harm to themselves. I always urge people to think of alternative, less dangerous, ways to protest about their situation. But given the uncertainty and anxieties surrounding their prolonged and apparently indefinite detention in Guantánamo, it is scarcely surprising that people’s frustrations boil over and they resort to such desperate measures.”

Referring to President Obama’s promise, when he took office, of “placing a high priority on closing Guantánamo and setting in motion a system to safeguard the fundamental rights of the detainees,” she “welcomed a White House spokesman’s reiteration of this commitment [on March 27] citing Congressional legislation as the prime obstacle,” but refused to allow the Obama administration to side-step its responsibilities.

Noting that the “systemic abuse of individuals’ human rights continues year after year,” she said, “We must be clear about this: the United States is in clear breach not just of its own commitments but also of international laws and standards that it is obliged to uphold. When other countries breach these standards, the US — quite rightly — strongly criticizes them for it.”

She added, “As a first step, those who have been cleared for release must be released. This is the most flagrant breach of individual rights, contravening the International Covenant on Civil and Political Rights. Last September’s death of Adnan Latif — the ninth person to die in detention at Guantánamo — was a sobering reminder of the problems with the Guantánamo detention regime under which individuals are detained indefinitely, in most cases without charge or trial. It is time to bring an end to this situation.”

Pillay also said she was “deeply concerned over the continued obstacles the National Defense Authorization Act of 2013 has created for the closure of the detention facility, as well as for the trial of detainees in civilian courts, where warranted, or for their release.” She pointed out that she “has repeatedly maintained that those Guantánamo detainees who are accused of crimes should be tried in civilian courts, particularly as the military commissions — even after improvements made in 2009 — do not meet international fair trial standards.”

She also called on the United States Government to “extend an invitation which would allow full and unfettered access to the United Nations Human Rights Council experts, including the opportunity to meet privately with detainees.” Under President Obama, as with President Bush, all UN requests to visit the prison and meet the prisoners privately have been refused.

Criticism of President Obama by the editors of the New York Times

The same day that Navi Pillay issued her statement, the New York Times also ran an editorial that was severely critical of the Obama administration. Noting that, for the prisoners at Guantánamo, the hunger strike “is again exposing the lawlessness of the system that marooned them there,” the editors proceeded to describe the hunger strike as “a collective act of despair,” noting, “Prisoners on the hunger strike say that they would rather die than remain in the purgatory of indefinite detention. Only three prisoners now at Guantánamo have been found guilty of any crime, yet the others also are locked away, with dwindling hope of ever being released.”

The Times editorial also noted that there have been many hunger strikes since the prison opened in 2002, and mentioned a “major strike” in 2005, which involved more than 200 prisoners, although the editors recognized that “those earlier actions were largely about the brutality of treatment the detainees received,” whereas the protest this time “seems more fundamental.” Echoing Tom Wilner, one of the members of the steering committee of “Close Guantánamo,” in his recent opinion piece for the Washington Post, the Times‘ editors noted that Gen. John Kelly, the Marine commander of  SouthCom, which oversees Guantánamo, told a Congressional hearing last month that the prisoners “had great optimism that Guantánamo would be closed” when President Obama promised that it would be, four years ago, but are now “devastated,” because that promise has been broken and they feel abandoned.

Moving on to analyze specific statistics about Guantánamo, the Times‘ editors note that, for 86 of the 166 men still held, “this is a particular outrage,” because they were “approved for release three years ago by a government task force, which included civilian and military agencies responsible for national security.”

Correctly, the editors point out that “Congress outrageously has limited the president’s options in releasing them, through a statute that makes it very difficult to use federal money to transfer Guantánamo prisoners anywhere,” although the blame that should be apportioned to President Obama himself is rather muted. As the editors explain, “Fifty-six of those approved for release are Yemenis,” but whereas the truth is that President Obama very publicly issued a ban on releasing cleared Yemenis over three years ago, in the wake of a failed airline bomb plot undertaken by a Nigerian man recruited in Yemen, the editors’ line is that “the government” has “said it will not release them to Yemen for the ‘foreseeable future,’ apparently because they might fall under the influence of people antagonistic to the United States.”

Moving on to the 30 others approved for release, the editors noted that, in the last ten years, the Times and NPR have determined that “the government has sent detainees to at least 52 countries,” and that, as a result, it “surely can find countries to take detainees who cannot be returned home.”

The editors also look at the 80 other remaining prisoners, noting that “the three who have been convicted and the 30 or so who are subjects of active cases or investigations can be transferred to a military or civilian prison,” but criticizing the administration for holding the rest “in indefinite detention — a legal limbo in which they are considered by the government to be too dangerous to release and too difficult to prosecute.” The editors add, “Such detention is the essence of what has been wrong with Guantánamo from the start. The cases of these detainees must be reviewed and resolved according to the rule of law.”

This is what we have been arguing for here at “Close Guantánamo,” since it became apparent, in December, that the reviews that President Obama promised for the 46 men he consigned to indefinite detention without charge or trial two years ago have not materialized, and it is a demand that we are not only happy to reiterate, but also to remind the administration that we are willing and able to assist in providing objective analyses of the supposed evidence that is being used to justify these men’s detention.

In conclusion, the New York Times editorial notes that the government “is force-feeding at least 10 of the hunger strikers,” even though international agreements among doctors say that “doctors must respect a striker’s decision if he makes ‘an informed and voluntary refusal’ to eat.” That has never applied at Guantánamo, and, as the editors explain, the Obama administration “justifies the force-feeding of detainees as protecting their safety and welfare.”

Instead, however, “the truly humane response to this crisis,” as the editors explain, “is to free prisoners who have been approved for release, end indefinite detention and close the prison at Guantánamo.”

Ask President Obama to finally fulfill his failed promise to close Guantánamo

We congratulate the editors of the New York Times for their fine editorial, and ask those who agree with it to support the three demands for President Obama that we first formulated in an article in February entitled, “The Relentless Importance of Closing Guantánamo,” in which, as well as addressing the main themes of the editorial, we called for the Obama administration to appoint someone specifically to deal with the closure of Guantánamo, to replace Daniel Fried, the senior State Department official who was the envoy for the closure of Guantánamo until recently, when his office was closed down.

Those interested in this topic might like a recent article for The Hill, by Brent Budowsky, a former aide to Sen. Lloyd Bentsen and Bill Alexander, when he was chief deputy majority whip of the House, who proposed last week that Gen. David Petraeus might be the man for the job.

Below are our demands, and we encourage you to write to the President, and to Secretary of State John Kerry, to demand immediate action before any of the hunger strikers at Guantánamo die.

1: Lift the ban on releasing any of the 56 cleared Yemenis from Guantánamo, imposed in January 2010.

2: Appoint a new person to deal specifically with closing Guantánamo, to find new homes for the cleared prisoners in need of assistance.

3: Take the fight to Congress to stop treating the cleared prisoners as pawns in a cynical game of political maneuvering, and to clear the way for all 86 cleared prisoners to be repatriated or safely rehoused in other countries.

Please help us by writing to President Obama, and to Secretary of State John Kerry:

President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

or email the President.

Secretary of State John Kerry
US Department of State
2201 C Street NW
Washington, DC 20520

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.