In the long and shameful 20-year history of the prison at Guantánamo Bay, obstacles to the prison’s closure — and to the conditions in which prisoners are held — have been raised persistently, since 2010, after President Obama lost control of Congress in the mid-term elections, by Republican lawmakers, in the annual National Defense Authorization Act (NDAA). This year, as in previous years, concerned Democrats are hoping to overturn these provisions, and below I’m posting a letter they wrote recently to the House and Senate Armed Services Committees, but before I get to that it’s worthwhile looking back at the long history of these Congressional obstacles.
In December 2010, when Congress passed the NDAA for 2011, it included, for the first time, three provisions regarding Guantánamo that represented an unacceptable intrusion on the president’s authority: firstly, a ban on the use of funds to bring any Guantánamo prisoners to the US mainland for any reasons, even to face trials; secondly, a ban on the use of funds to purchase or construct any facility on the US mainland for housing prisoners held, at the time, at Guantánamo; and, thirdly, a requirement that, before any prisoner is released, the defense secretary must sign off on the safety of doing so.
The first of these provisions was specifically aimed at derailing the Obama administration’s proposals to try Khalid Shiekh Mohammed (KSM) and the other men accused of involvement in the 9/11 attacks on the US mainland in federal court (and, just to make it clear, it mentioned KSM by name), while the second was designed to prevent the closure of Guantánamo by derailing the administration’s efforts to buy the empty Thomson Correctional Center in Illinois to transfer men from Guantánamo so that the prison could be closed. The third provision, meanwhile, was meant to make the release of prisoners unpalatable, as any post-release problems would become the responsibility of the defense secretary.
Last Tuesday (Dec. 7), the Senate Judiciary Committee held a powerful hearing, “Closing Guantánamo: Ending 20 Years of Injustice,” which presented an unerring case for the prison at Guantánamo Bay to be closed. The committee’s chair, Sen. Dick Durbin, the Senate Majority Whip, and the second most influential Democrat in Congress, is a longtime opponent of the existence of Guantánamo, and has been doing all he can to ensure its closure since Joe Biden became president in January.
in April, Sen. Durbin 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). The letters were particularly significant because the lawmakers recognized that holding prisoners indefinitely without charge or trial is unacceptable, and urged the Biden administration to release everyone still held who has not been charged (27 of the remaining 39 prisoners), with plea deals to be negotiated for the prisoners charged with crimes, to bring to an end the irredeemably broken military commission system in which they are currently trapped.
The lawmakers also called for a senior White House official to be appointed to be accountable for the prison’s closure, and for the role of the Special Envoy for Guantánamo Closure at the State Department, responsible for prisoner releases and post-release monitoring, to be revived, and they also urged the Justice Department to abandon its long-held position of resisting every legal challenge submitted by the prisoners, even in cases where the administration itself has endorsed their release. As the Senators explained, “If the Justice Department were not to oppose habeas petitions in appropriate cases, those detainees could be transferred more easily pursuant to court orders.”
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.”
It’s a sign of the chronic failure of the US justice system to deliver anything resembling justice to the men held at Guantánamo Bay that, nearly 20 years after the prison was established to hold them, for the most part, indefinitely without charge or trial — even though they were never adequately screened at the time of their capture — lawyers and judges are still arguing about whether or not those men have any right to see the government’s purported evidence against them.
Specifically, the arguments involve the extent to which — if at all — the Fifth Amendment’s Due Process Clause applies to the men held at Guantánamo, in which the most prominent players resisting its application have been, historically, judges in the appeals court in Washington, D.C. (the D.C. Circuit), and lawyers in the Civil Division of the Justice Department, who, under George W. Bush, Barack Obama and Donald Trump, and now under Joe Biden, have strenuously resisted efforts to extend to the Guantánamo prisoners any meaningful right to challenge the basis of their imprisonment.
On a very fundamental level, these arguments shouldn’t even be taking place at all. Way back in the mists of time, in Boumediene v. Bush, in June 2008, when the Supreme Court affirmed the Guantánamo prisoners’ constitutionally guaranteed right to challenge the basis of their detention via a writ of habeas corpus, the Court’s intention was that they would be entitled to a “meaningful review” of the basis of their imprisonment, in which the government would have to present its evidence openly, and have it challenged.
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.
In the long struggle to try to secure the closure of the prison at Guantánamo Bay, there has rarely been adequate support from lawmakers, so it was extremely reassuring, on April 16, to see that 24 Democratic Senators — almost half of the Democrats in the Senate — have written a letter to President Biden urging him to close the prison once and for all.
Led by Senate Majority Whip and Judiciary Committee Chairman Dick Durbin, and including Patrick Leahy, Dianne Feinstein, Elizabeth Warren and Bernie Sanders, the 24 Senators not only urged President Biden to close the prison, but also provided detailed proposals for how that can be achieved.
These proposals involve re-establishing the Office of the Special Envoy for Guantánamo Closure at the State Department, which we discussed in an article just last week, and also appointing a “senior White House official” to be “accountable for the closure process.”
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.
The prisoners at Guantánamo Bay — held, for the most part, without charge or trial for over 18 years now — have rarely had the support they should have received from the various branches of the U.S. government — the executive branch, Congress and the judiciary — considering how outrageous it is for prisoners of the U.S. to be held in such fundamentally unjust conditions.
Since Donald Trump became president, of course, any pretence of even caring about this situation has been jettisoned. Trump loves Guantánamo, and is happy for the 40 men still held to be imprisoned until they die, and he hasn’t changed his mind as a new threat — the novel coronavirus, COVID-19 — has emerged.
Last week, however, representatives of another group of people with a long history of not doing much for the prisoners — lawmakers — sent a letter to defense secretary Mark T. Esper calling for clarification regarding what, if anything, the Pentagon is doing to “prevent the spread of the coronavirus disease 2019 (COVID-19) pandemic among detainees in the prison facility at the United States Naval Station Guantánamo Bay, Cuba (Guantánamo), as well as efforts to protect service members responsible for detention operations and all other military personnel at the base.”
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.
It’s now nearly five months since the last prisoners were released from Guantánamo, even though 57 of the 122 men still held have been approved for release from the prison, the majority since President Obama’s high-level, inter-agency Guantánamo Review Task Force issued its recommendations about the disposition of the remaining prisoners in January 2010.
As any decent person would agree, still holding men five years after you said you no longer wanted to hold them is a particularly offensive betrayal of any notion that you believe in justice and fairness.
President Obama released dozens of prisoners — 66 in total — from when he took office in January 2009 until September 2010, at which point restrictions on the release of prisoners, which were cynically imposed by Congress, made it more difficult. This was not because the administration was unable to release prisoners, but because the process of certifying to Congress that it was safe to do so, which were the conditions imposed by lawmakers, made the release of prisoners much more politically sensitive than it should have been. Read the rest of this entry »
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker, singer/songwriter (The Four Fathers).
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