US Readers: Please Tell Congress to Ease Restrictions on Transferring Prisoners Out of Guantánamo in the National Defense Authorization Act (NDAA)

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Ever since Barack Obama left the White House, in January 2017, having failed to close the prison at Guantánamo Bay, despite promising to do so on his second day in office eight years before, it has been difficult to see any light at the end of the tunnel when it comes to that wretched offshore prison. 

The 40 men still held are, for the most part, held indefinitely without charge or trial, while the few who are charged are caught in seemingly endless pre-trial hearings in the military commissions, a broken facsimile of a functioning judicial system. And in the White House, of course, is Donald Trump, who has no interest in justice when it comes to the Guantánamo prisoners; Donald Trump, who wants no one released under any circumstances, and would happily add to the prison’s population if he could.

However, a glimpse of light at the end of the tunnel finally re-emerged in November, in the mid-term elections, when Democrats took back control of the House of Representatives. Given the track record of the Obama years, it would be unwise to read too much into this slight shift in the balance of power amongst the US’s elected representatives, but, as Shilpa Jindia noted in a recent article for the Intercept, “On the anniversary of the prison’s opening in January, a coalition of NGOs visited with key House Democrats, who expressed support for various tactics to close Guantánamo.”

The most significant move for Democrats would be to tackle the ban on the transfer of prisoners from Guantánamo to the US mainland that has existed since 2011, when, as Shilpa Jindia described it, Republicans “inserted retaliatory provisions” into the National Defense Authorization Act (NDAA) “to stymie the Obama administration’s flagging efforts to close Guantánamo.” 

As Shilpa Jindia also explained, “Two sections in particular landed a decisive blow, prohibiting the use of funds to transfer or release detainees to the United States, and to construct or modify facilities in the US to house detainees. These sections, though slightly amended, have been retained each year, codifying conservative fearmongering about Guantánamo detainees. However, the most effective use of the NDAA is psychological, giving the impression that nothing can be done.”

Crucially, the ban is so sweeping that it prevents prisoners from being brought to the US for any reason — to be tried in federal court, for example, or even to receive medical treatment.

Both these restrictions, however, are coming under increasing scrutiny. As I have been explaining for years, the commissions are not fit for purpose, and their sorry state is only getting worse. As Shilpa Jindia noted in her article, “A protacted legal saga at Guantánamo Bay ended last month, when a federal court tossed out two years of rulings by the judge overseeing the military tribunal trial of Abd al-Rahim al-Nashiri, the alleged leader of the 2000 bombing of the USS Cole. The ruling was a rare rebuke, as federal courts have largely deferred to the government on matters relating to Guantánamo in recent years.” 

Providing further details, Shilpa Jindia stated, “On April 16, the D.C. Circuit Court issued a unanimous ruling vacating the orders of Air Force Col. Vance Spath, the presiding judge on Nashiri’s case since 2015, because he failed to disclose that he was seeking a job as an immigration judge with the Justice Department — the very same body involved in prosecuting Nashiri.”

With Judge Spath departed from Guantánamo, and with all his decisions erased, it now seems pretty clear that the case, as Shilpa Jindia also noted, “will now certainly drag on for years,” and there is no reason to suspect that anything more speedy will happen in any of the other current cases — of the five men accused of involvement in the 9/11 attacks, and of Abd al-Hadi al-Iraqi.

The case of al-Iraqi, one of the last prisoners to arrive at Guantánamo, in 2008, is also of relevance to the other pressing problem with the NDAA’s restriction — on bringing prisoners to the US mainland for medical treatment.

This problem — one that only gets worse with the passage of time, as the prisoners get older, and their ailments increase (especially, perhaps, in the cases of those men who were tortured in the CIA’s “black sites”) — was highlighted in a recent New York Times article by Carol Rosenberg, which I wrote about in an article entitled, Slow Death at Guantánamo: Why Torture and Open-Ended Arbitrary Detention Are Such Bad Ideas. 

Al-Hadi’s was one of the cases focused on by Rosenberg, as he has had three spine surgeries, and yet is still in need of the kind of advanced medical care that is simply not available at Guantánamo — and yet, because of current restrictions, he cannot be brought to the US mainland under any circumstances.

Working on the Democrats

Following up on the meetings with Democrats that were organized in January by advocates for the closure of Guantánamo, the National Religious Campaign Against Torture (NRCAT) has just launched an action whereby concerned Americans can write to their Members of Congress urging them to allow transfers out of Guantánamo.

TAKE ACTION: Tell Congress to Allow Transfers Out of Guantánamo

As they explain, they are hopeful that, this year, “Congress is considering fixing some of the damage it caused in previous NDAAs. As Congress begins its work on the FY 2020 NDAA, some in Congress are working to pass provisions that would allow Guantánamo detainees to agree to plea deals by video-conference or to be transferred to the US for trial. Others are working to allow detainees to be temporarily transferred to the US for medical treatment and to otherwise improve medical care at Guantánamo. Still others are working to get rid of restrictions on transferring Guantánamo detainees entirely.”

They add, “Congress will make many of these decisions during the next few weeks as the House and Senate each draft their versions of the NDAA. Please write to your Members of Congress now to tell them that you want them to do the right thing and to lift the restrictions on transferring detainees out of Guantanamo — and at a minimum to allow detainees to be transferred for trial or medical treatment.”

NRCAT are not alone in urging action. Today, in an article for Defense One, entitled, “Treat Guantánamo Detainees in the United States,” Albert J. Shimkus, Jr., an Associate Professor in the National Security Affairs Department of the US Naval War College, who was the first Joint Task Force Guantánamo Surgeon, stated that It is the “absolute responsibility of the US Senate to include and pass, in the next version of the National Defense Authorization Act, specific language that allows for the temporary transfer” of prisoners who are ill “to the continental United States for emergency and/or definitive treatment.”

If you’re in the US and can help at all, please do!

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Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in 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), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.

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 six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.