Sen. Dick Durbin Files Amendment to National Defense Authorization Act (NDAA) Calling for the Closure of Guantánamo

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the 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.

On Tuesday (November 30), Sen. Dick Durbin (D-IL), the US Senate Majority Whip, and the Chair of the Senate Judiciary Committee, spoke in the Senate “about the importance of closing the Guantánamo Bay detention facility and announced he had filed an amendment to the National Defense Authorization Act (NDAA) to close the facility once and for all”, as he explained on his website. Sen. Durbin has a long history of opposing the existence of the prison at Guantánamo Bay, and in April was the lead signatory of a letter to President Biden urging him to close the prison, which was also signed by 23 other Democratic Senators (a House version, in August, was signed by 75 Democratic members of the House of Representatives). In addition, in July, Sen. Durbin wrote to Attorney General Merrick Garland, urging him to bring to an end the Justice Department’s persistent efforts “to rationalize indefinite detention at Guantánamo.”

The annual NDAA has cynically prevented the use of government funds to close the prison — as well as the transfer of prisoners to the US mainland for any reason — since the Obama presidency, and while the transfer provisions have been dropped in the House’s version of the NDAA this year, they have not been dropped by the Senate. House and Senate representatives are meeting soon to agree a final version of next year’s Act, and you can write to them here to urge them to drop the transfer prohibition, but Sen. Durbin’s amendment obviously goes much further.

Sen. Durbin began his speech by honoring “the life and legacy of US Army Major Ian Fishback, who spoke out against America’s inhumane treatment of detainees after 9/11,” and who, sadly, passed away last month at the age of 42. He was, as Sen. Durbin explained, “integral in rallying support for the torture amendment that Durbin led with the late Senator John McCain” in 2005, “which explicitly banned inhumane treatment of any prisoner being held by the US government — on American soil, or abroad.”

Sen. Durbin then proceeded to announce, “I have an amendment to this bill [the NDAA] that would close the detention facility at Guantánamo Bay once and for all,” and proceeded to make the following speech, which I’ve transcribed from the video, and which I’m also posting below, via YouTube:

Sen. Dick Durbin’s Senate speech about Guantánamo, Nov. 30, 2021

Since the first group of detainees was brought to Guantánamo in January of 2002, four different Presidents have presided over the facility. In that time, the Iraq war has begun and ended. The war in Afghanistan, our nation’s longest war, has come to a close. A generation of conflict has come and gone. Yet the Guantánamo detention facility is still open, and every day it remains open is an affront to our system of justice and the rule of law. It is where due process goes to die. That is precisely why military officials, national security experts, and leaders on both sides of the aisle have demanded its closure for years.

The facility was virtually designed to be a legal black hole where detainees could be held incommunicado beyond the reach of law and subjected to unspeakable torture and abuse. In the words of a former senior official in the Bush administration, Guantánamo exists in the “legal equivalent of outer space.” It was created to circumvent the Geneva Conventions … and other long-standing treaties. This subversion of justice has harmed detainees, it has undermined our moral standing, and it has failed to deliver justice which it promised.

For two decades the families of Americans who died on 9/11 have waited for the alleged co-conspirators who are being detained in Guantánamo to be brought to justice … but the case still hasn’t come to trial. Imagine: if justice delayed is justice denied, how can this be justice at Guantánamo? Instead, the facility has become a symbol for human rights abuse [and] lawlessness […]

The stories out of Guantánamo and CIA “black sites” are shocking. Let me tell you one of them. Last month, Guantánamo detainee Majid Khan testified before a military jury about the abuse he suffered in the facility and in CIA “black sites.” It was the first time that a detainee has [publicly] described his torture at a CIA “black site.” Let’s be clear: Majid Khan is a former member of Al-Qaeda, who should be held accountable for his actions, but there is no justification for torture. Mr. Khan recounted being abused in unspeakable, unthinkable ways by our government, including being waterboarded, [and] shacked to a ceiling until his ankle filled with blood. In one part of his testimony he described a CIA medic sexually violating him with a garden hose.

As Mr. Khan shared the excruciating details of his torture, the members of the jury listened closely. But pay heed: these weren’t average citizens sitting on the jury; they were active duty senior U.S. military officials … and, when the hearing concluded, these high-ranking military leaders did something unheard of. Seven of the eight jurors signed a handwritten letter recommending clemency for Majid Khan. This is what they concluded, and I want to quote it word for word: “Mr. Khan has been held without the basic due process under the U.S. Constitution … [He] was subjected to physical and psychological abuse well beyond approved enhanced interrogation techniques, instead being closer to torture performed by the most abusive regimes in modern history. This abuse was of no practical value in terms of intelligence, or any other tangible benefit to U.S. interests.”[…]

The human rights abuses we committed in Guantánamo and CIA “black sites” are not merely inhumane; they don’t work, they’re ineffective. Khan testified, “I lied just to make the abuse stop.” Torturing him brought us no clarity, [it] brought us no truth, it brought us no closer to eradicating terrorism. Instead, the stories about the torture of prisoners have only galvanized American enemies. They have been packaged into propaganda and recruitment tools for terrorism, which in turn endangers our servicemen and women, as well as our allies. These accounts of abuse have also diminished our international standing. How can we claim credibility as a nation, how can we hold authoritarian dictators accountable, if they can point to our own legacy of cruelty and indefinite detention? […]

The degrading conditions at Guantánamo are being funded by American taxpayers. How much is the cost of Guantánamo? Astronomical, that’s how high it is. We spend more than $500 million a year to keep Guantánamo open … to detain how many people? … 39. 39 prisoners … and 13 have already been approved for transfer. That works out to nearly $14 million a year on each prisoner like Majid Khan … That’s enough money to expand Medicaid coverage to one and a half million Americans for 10 years.

Setting aside the case, we have to acknowledge the larger truth: Guantánamo does not reflect who we are or who we should be. Indefinite detention without charge or trial is antithetical to American values, and yet more than two-thirds of the people detained at Guantánamo today have never been charged with a crime. How can that be any form of justice?

With or without the amendment I’ve introduced to this year’s defense authorization, we must accelerate the timeline to finally close Guantánamo … Like the war in Afghanistan, America’s failures in Guantánamo must not be passed on to another administration or to another Congress. Can this Senate summon the courage to finally close this detention facility? I’d like to test it on the floor of the Senate. […]

Next week the judiciary committee is going to hold a hearing on how we can close Guantánamo once and for all. There are more steps the Biden administration can take to accelerate this closure. One is by appointing a special envoy to the State Department to negotiate transfer agreements [for] those inmates who are scheduled to be transferred — 13 of the 39 — to transfer them to other nations. We must also reach swift resolution in the remaining cases where charges have been brought, instead of moving forward with military commissions. Let’s finally accept the obvious: military commissions are not the answer in Guantánamo and have not been for 20 years.

If there’s one lesson we can learn from the shameful legacy of Guantánamo, it’s that we need to trust our system of justice. The use of torture and military commissions that deny due process have hindered our ability to bring terrorists to justice. Going forward, we should adhere to the long-held values of humane treatment and the rule of law. Our federal courts have proven more than capable of handling even the most serious and complex terrorism cases. Since 9/11, hundreds of terrorism suspects have been tried and convicted in our federal courts, and many are now being safely held in federal prisons.

Compare that to the military commission case against the alleged conspirators behind 9/11. It still hasn’t come to trial, more than two decades after that horrendous attack. The families who lost loved ones on that day deserve better. America deserves better. And American patriots like Major Fishback deserve better as well. We all deserve better than these black holes that violate our national values and make true legal accountability impossible. As Major Fishback wrote to Senator McCain all those years ago, ‘If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession.’ It’s time to live up to those ideals, those ideals that our troops have risked their lives to defend. It’s time at long last to face reality and honestly say: close the detention facility in Guantánamo. Let’s put this dark chapter behind us once and for all.”

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Andy Worthington is a freelance investigative journalist, activist, author, photographer (of an ongoing photo-journalism project, ‘The State of London’), 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 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 you can watch it online here, via the production company Spectacle, for £2.55).

In 2017, Andy became very involved in housing issues. He is the narrator of the 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 struggle for housing justice — and against environmental destruction — continues.

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