Eleven years ago, on January 11, 2002, the Bush administration proudly presented to the world one of its major responses to the terrorist attacks of September 11, 2001 — a prison on the grounds of the U.S. naval base at Guantánamo Bay, Cuba, designed to hold hundreds of men and boys seized in the “war on terror” that was declared in the wake of the attacks, where the prisoners were to be neither criminals not soldiers, but “enemy combatants” without any rights whatsoever.
The base was chosen because it was presumed to be beyond the reach of the U.S. courts. And when the prisoners were deliberately excluded from the protections of the Geneva Conventions, in a directive issued by George W. Bush on February 7, 2002, it became a genuinely evil experiment, devoted to torture and other forms of coercion, indefinite detention without charge or trial, and the extraction of false statements from the prisoners that were then dressed up as evidence to justify holding them.
That was in spite of the fact that, for the most part, the prisoners knew nothing about al-Qaeda or international terrorism, and were sold to U.S. forces for bounty payments by their Afghan and Pakistani allies or seized as a result of inept U.S. intelligence. Many of the prisoners were living in Pakistan or visiting Pakistan, or were visiting Afghanistan as missionaries, humanitarian-aid workers, refugees, or economic migrants.
Others were soldiers, recruited by clerics in their homelands to help the Pashtun Taliban fight an inter-Muslim civil war against Afghanistan’s Northern Alliance comprising the country’s other ethnic components — the Tajiks, Uzbeks, and Hazara, who make up more than half the population. The men may have been sold a lie about the Taliban’s establishing a “pure Islamic state” in Afghanistan, but few of them had even met Osama bin Laden, and only a few dozen of the 779 could genuinely be alleged to have had any involvement with terrorism or to have traveled to Afghanistan to engage in any kind of conflict with the United States prior to the 9/11 attacks.
Eleven years later, the prison’s continued existence demonstrates the profound failure of the U.S. establishment to deal with the crimes committed in the name of counterterrorism by the Bush administration. Although torture has largely been replaced by assassination as government policy — in the drone attacks that are such a hallmark of the Obama administration — the cancer of indefinite detention continues, at Guantánamo, to eat away at America’s belief in justice and fairness.
One hundred sixty-six men of the 779 held in total since the prison opened are still held, and it is shocking that 86 of them were cleared for release — or otherwise told that the U.S. government did not want to continue holding them without charge or trial for the rest of their lives — at least three years ago, after an interagency Guantanamo Review Task Force, established by Barack Obama, issued a report after a year spent reviewing all the prisoners’ cases. In around half the cases, the men had previously been cleared for release, between 2004 and 2007, by military review boards established by the Bush administration.
In two-thirds of the cases, the prisoners are still held because they are Yemenis, and Obama imposed a ban on the release of any cleared Yemenis from Guantánamo after Umar Farouk Abdulmutallab, a Nigerian man recruited in Yemen, tried and failed to blow up a U.S.-bound plane on Christmas Day 2009. The rest are held largely because of onerous restrictions imposed by Congress, where lawmakers have passed legislation designed to prevent any prisoners from being released, for the most part as a cynical political maneuver.
On the 11th anniversary, I call on the president to fulfill the promise to close Guantánamo that he made when he took office in January 2009. The Yemenis, held on the basis of “guilt by nationality,” must be freed, and negotiations must take place between the administration and Congress regarding the passages in the National Defense Authorization Act that prevent the release of prisoners, requiring the secretary of defense to make promises about the men’s future conduct that are impossible to make — namely, that they will not, under any circumstances, be able to pose a threat to the U.S. or its interests.
Last Wednesday, when Obama signed the latest National Defense Authorization Act, a $633 billion monster that will fund America’s bloated military-industrial complex for another year, he included a signing statement in which he criticized Congress, noting, “I continue to believe that operating the facility weakens our national security by wasting resources, damaging our relationships with key allies, and strengthening our enemies.”
Although he had threatened to veto the bill, as he had threatened last year, he failed to do so in the end, stating from his vacation in Honolulu that he signed the bill into law because of “the need to renew critical defense authorities,” for which “funding was too great to ignore.” He did, however, give notice to Congress that he was not necessarily prepared to accept the restrictions if they violated what he regards as the acceptable reach of presidential power.
Specifically, he stated, “My administration will interpret these provisions as consistent with existing and future determinations by the agencies of the executive responsible for detainee transfers. In the event that these statutory restrictions operate in a manner that violates constitutional separation of powers principles, my administration will implement them in a manner that avoids the constitutional conflict.”
In other correspondence in the run-up to the signing, Defense Secretary Leon Panetta wrote to House Armed Services Committee Chairman Buck McKeon on December 11 to argue for “relief from the restrictions” by “highlighting the financial costs” of Guantánamo, where 1,700 troops and civilians work, and where, as the Miami Herald explained, “the Pentagon imports everything from food to fuel for electricity to entertainment for both captives and captors.” It costs around $800,000 a year to hold a prisoner at Guantánamo — meaning that it costs nearly $70 million a year to hold the cleared prisoners alone — whereas the cost of one year’s confinement in a federal maximum security prison is just less than $35,000 a year — in other words, less than 5 percent of the cost per prisoner at Guantánamo.
Panetta also noted, “These sections would preclude moving even convicted war criminals serving life sentences to secure facilities in the United States that would also be economically efficient.” The reference, at present, applies to only one prisoner, Ali al-Bahlul, convicted of producing videos for al-Qaeda in a trial by military commission in 2008 at which he was given a life sentence after refusing to mount a defense.
Primarily, however, as the Miami Herald explained, Obama took exception to a passage that “forbids the use of federal funds to transfer Guantánamo detainees to U.S. soil for any reason, including a federal criminal trial,” and another that “maintains restrictions on executive branch authority to transfer detainees to a foreign country.” As the article noted, those restrictions “have all but frozen transfers from the base. Only those detainees who die in custody or who get court release orders can leave without a Defense Department waiver and certification to Congress.”
With the legitimacy of the military commissions under threat after a conservative judge in the D.C. Circuit Court, Judge Brett Kavanaugh, quashed the 2008 conviction of Salim Hamdan, a driver for Osama bin Laden, for providing material support to terrorism, because, as he correctly noted, it was not a crime at the time of the supposed offense, the administration may be looking for a way to revive federal court trials for Guantánamo prisoners.
Although terror suspects in general are prosecuted in federal court, where material support is a recognized offense, only one Guantánamo prisoner, Ahmed Khalfan Ghailani, a Tanzanian peripherally involved in the 1998 African embassy bombings, made it to the mainland for a federal court trial before the congressional shutters came down. The administration’s intention to prosecute Khalid Sheikh Mohammed and four other men in federal court in New York, which was announced in November 2009, was abandoned in a humiliating climbdown by Obama and Attorney General Eric Holder, when significant opposition was mounted and they caved in to the criticism.
Perhaps hinting that officials wanted to look once more at federal court trials, Obama stated that the proposal for federal court trials “substitutes the Congress’s blanket political determination for careful and fact-based determinations, made by counterterrorism and law-enforcement professionals, of when and where to prosecute Guantánamo detainees.” Reiterating his concerns that his power as the president was being unduly impeded, he added, “Removing that tool from the executive branch undermines our national security. Moreover, this provision would, under certain circumstances, violate constitutional separation of powers principles.”
While the tug-of-war between Congress and the executive branch continues, there can be no justice for the remaining prisoners in Guantanamo — neither the 86 men cleared but still held, nor the 30 or so scheduled to face trials. For the sake of justice, a solution must be found that can lead to the release of the cleared prisoners, and fair trials, sooner rather than later, for the other men. Moreover, a solution must be found for 46 others, who were recommended for indefinite detention without charge or trial by Obama’s Task Force, on the basis that they were too dangerous to release, but that insufficient evidence exists to put them on trial. That is deeply shocking, but it is also typical of the problems, as it implies a state of danger where none can be proved.
Everyone involved in this profoundly shameful story, in the executive branch and Congress, should stop treating Guantánamo as though it is some sort of challenging law-enforcement matter. It is a legal, moral, and ethical abomination, its rationale built on arrogance and vengeance, and sustained through torture and lies. Those who are alleged to constitute a threat should be tried, and everyone else should be released, unless the U.S. government can find the courage to declare that some of them are prisoners of war, as defined by the Geneva Conventions, who can legitimately be held unmolested until the end of hostilities.
However, that would require the administration and lawmakers to accept legal challenges regarding the duration of the “war on terror,” which, it seems, they do not want, preferring to continue to shirk their responsibilities for defining what kind of war America is supposed to be involved in, and maintaining an ill-defined global war indefinitely.
The men at Guantánamo are victims of this bogus war, as are the 50 or so non-Afghan prisoners at Bagram in Afghanistan, whose release was prevented by Congress for the first time in this year’s NDAA, even though some of them have been held for more than ten years without even the limited rights of the Guantánamo prisoners.
That the lives of these prisoners should be sacrificed for endless war through a policy of indefinite detention ought to be a source of undying shame for all Americans. It is time, once more, to demand the closure of Guantánamo, but this time not to give up if elected officials try to silence us with indifference.