The continued imprisonment of at least 61 prisoners at Guantánamo, who have been cleared for release after multiple military review boards (or, in recent months, after rulings in a U.S. court), was an affront to notions of justice when the Bush administration was in power, and is even more so now that Barack Obama, who has pledged to close Guantánamo, is president.
Many of these prisoners have been cleared since 2006, and yet the majority of them are still held in conditions of profound isolation. At the very least, President Obama should be ensuring that all the prisoners are held in accordance with the Geneva Conventions, as he promised in a presidential order on his second day in office, and that the cleared prisoners are held in Camp 4, away from the isolation blocks, where the fortunate few are allowed to live communally.
However, as I reported last week, with a mass hunger strike currently raging at the prison, and at least 42 of the remaining 242 prisoners being force-fed, severe doubts remain about the ability of Defense Secretary Robert Gates to ensure that Guantánamo conforms to the requirements of the Geneva Conventions within the deadline of a month that was established by the president.
European support for accepting Guantánamo prisoners
For the prisoners who have been cleared for release, there was, however, some good news last week, when, by an overwhelming majority of 542 votes to 55 (with 51 abstentions), the European Parliament passed a resolution on Guantánamo, which, as the BBC reported, “called for EU states to accept low-risk prisoners who cannot be sent home for fear they might be mistreated.”
Although there were dissenters — the right-wing German politician Harthmuth Nassauer, for example, claimed that many of the men “remain potential terrorists” — British MEP Graham Watson caught the general tone of the decision when he said, “Europe cannot stand back and shrug its shoulders and say these things are for America alone to sort out.” He stated that a crucial lesson to be learned from the Bush administration was that, “in the administration of international justice, the go-it-alone mentality ends in a cul-de-sac of failure,” and urged member states to recall that, although the Bush administration had led the way in the “war on terror,” European countries also bore their share of the blame. “Too often member states from our union were complicit in what the Bush administration did,” he said.
Since Barack Obama was elected in November, the countries of Europe have struggled to present a coherent view on Guantánamo. In December — on the 60th anniversary of the creation of the Universal Declaration of Human Rights — Portugal was the first country to state openly that it would accept some of the cleared prisoners, but other countries were slow to follow the Portuguese example.
However, with Barack Obama now installed in the White House, the European Parliament’s enthusiastic support for resettling Guantánamo prisoners may now yield some tangible results. On Saturday, in his first visit to Europe, Vice President Joe Biden said that it was “time to press the reset button and revisit the many areas where we can and should work together.” Using Guantánamo as an example, he stated, “As we seek a lasting framework for our common struggle against extremism, we will have to work cooperatively with other nations around the world — and we will need your help.”
In the last few days, media outlets throughout Europe and beyond have been buzzing with claims that European countries are now prepared to help out. On Friday, it was reported that the Spanish government had “expressed its willingness” to consider accepting prisoners “on a case-by-case basis within the context of a European Union consensus on the issue,” and that the Czech foreign minister had said that, “if the United States asked the EU to accept some Guantánamo prisoners, the Czech Republic would consider the request.”
Courting the Uighurs
Even more significantly, the municipal council of Munich indicated that it was backing a motion submitted by the Green Party to accept Guantánamo’s most famous cleared prisoners, 17 Uighurs (Muslims from China’s Xinjiang province), who had fled to Afghanistan to escape persecution by the Chinese government. The Uighurs are unique in that they are the only prisoners who, through a resounding court victory last June, managed to persuade the Bush administration to drop its claim that they were “enemy combatants,” and their settlement in Munich would make sense, as the Bavarian city is home to the largest Uighur community outside of China.
Munich’s municipal council is acting unilaterally (with no guarantee that the German chancellor will back the motion), but is not the only party interested in accepting the Uighurs. Last week the Associated Press reported that three of the Uighurs had applied for settlement in Canada, although the reporters also pointed out that previous attempts by the U.S. to re-house the Uighurs in Canada had been unsuccessful. In February 2007, notes prepared for Peter MacKay, Canada’s Foreign Affairs Minister, indicated that it was probable that they would be “inadmissible under Canadian immigration law.”
When the news about the Uighurs’ claim was announced last Tuesday, Liberal Senator Colin Kenny, the former chairman of the Canadian Senate’s national security and defense committee, stated that he supported the return to Canada of its only citizen in Guantánamo, Omar Khadr, a teenager at the time of his capture who has been repeatedly ignored by successive Canadian governments, but added that he had no interest in accepting any other prisoners. “Why should people clean up their dirty business?” Kenny asked, adding, “I don’t have much sympathy with the Americans for creating that prison.”
On Wednesday, however, it was revealed that Immigration Minister Jason Kenney (no relation) was contemplating whether to accept the Uighurs’ request, and was looking at the viability of issuing “temporary residence permits,” valid for up to three years, which would “allow the detainees to bypass the backlogged refugee process.”
These developments are a positive step for the Uighurs, of course, especially as countries willing to take them risk a diplomatic rift with China by doing so. As the Canadian story surfaced last week, the Chinese foreign ministry made a point of issuing a statement about the Uighurs. Ministry spokeswoman Jiang Fu said, “As for those Chinese terror suspects that are kept in Guantánamo, as we have stated before, we strongly oppose any country accepting these people.”
Why the Uighurs are an American problem
Nevertheless, there are two problems with this focus on the Uighurs. Firstly, as I have made clear in previous articles, when Judge Ricardo Urbina reviewed their case in October (almost exactly four months ago), he ruled that their continued detention in Guantánamo was unconstitutional, and, because no other country had been found that was prepared to accept them, ordered them to be delivered to his courtroom so that he could make arrangements for them to be resettled in the United States, in the care of communities in Washington, D.C., and Tallahassee, Florida, which had prepared detailed plans for their welfare and support.
The Bush administration shamelessly appealed, protesting that the men still posed a threat — even though it had conceded that they did not — and insisting that a District Court judge did not have the right to order their release into the United States. This too was also a false assertion, as Judge Judith W. Rogers, one of the appellate court judges explained in a dissenting opinion, when her colleagues approved the stay on Judge Urbina’s ruling that had been requested by the government. As a result, I believe that the obligation to re-house the Uighurs still rests with the U.S. government, and I join with Sabin Willett, a lawyer for the Uighurs, who has spent long years publicizing their plight, in asking Robert Gates and Attorney General Eric Holder to release them into the United States.
As Willett stated in a letter on January 23:
We urge the government to release the Uighurs immediately in the only place they can be released — the United States. Not only would this be just, but it is in our national interest. By accepting the Uighurs, we would encourage other countries to accept the significant number of Guantánamo detainees who are cleared for release but who cannot be repatriated. Bringing the Uighurs here is thus an important early step toward carrying out President Obama’s Executive Order and removing a stain on our National character.
The second problem with the widespread focus on the Uighurs is that it detracts from the cases of the other men held at Guantánamo who desperately need third countries to re-house them. Of the 44 cleared prisoners who are not Uighurs, 23 more men are currently seeking new homes. Three — of Palestinian origin — are essentially stateless, as it has proven impossible to negotiate their return with the Israeli authorities, and the other 20 — five Algerians, an Egyptian, a Libyan, a Tajik, eight Tunisians and four Uzbeks — cannot be repatriated because their safety cannot be guaranteed in their home countries. Last year, when two Tunisians were repatriated, these dangers were demonstrated with an alarming clarity. On their return, despite an agreement with the U.S. government that they would be treated fairly, the two men were subjected to show trials based on evidence extracted through the torture of another prisoner, and given jail sentences of three and seven years.
It is clear that none of the cleared prisoners poses a threat to anyone, for the simple reason that, in a prison based on the presumption of guilt — in which everyone has been held as an “enemy combatant” without rights, solely because the president said they were — those who have been approved for release, after multiple military reviews, have only succeeded in doing so because the authorities have concluded that they do not pose any danger to the United States or its allies.
So who are these other men?
There is not the space here to discuss all their stories, but they include Ahmed Belbacha, an Algerian who fled persecution by Islamists and came to the UK, where he settled in the seaside town of Bournemouth, and received a tip and a thank-you note from Britain’s deputy prime minister, after cleaning his room during a political conference. Ahmed’s only mistakes were to take a holiday in Pakistan in the fall of 2001, and to do so before his asylum application was complete.
Another is Nabil Hadjarab, a young Algerian from a broken home, with relatives in Lyon, who was only persuaded to travel to Afghanistan because he was caught in limbo between Algeria and France as his family disintegrated around him, and another is Rafiq al-Hami, a 39-year old Tunisian who had lived in Germany, where he had worked in restaurants and for a Turkish cleaning company. Seized randomly in Pakistan, far from the battlefields of Afghanistan, al-Rami was nevertheless sent to the CIA’s notorious “Dark Prison” near Kabul, which resembled a medieval torture dungeon, but with the addition of painfully loud music, blasted into the cells 24 hours a day.
Then there are seven Tunisians, who were all Italian residents. I covered the stories of five of these men last year, and one of them, to give just one example, is Adel al-Hakeemy, who had lived in Italy for eight years, working as a chef’s assistant in several hotels in Bologna, before traveling to Pakistan to get married. “I lived with Italians in their homes,” he explained to his lawyers. “I am used to their culture. The Italians worked alongside me, they respected me, they treated me as their brother.”
While these prisoners already have connections with specific European countries, others, like the Libyan Abdul Rauf al-Qassim, do not. Cleared since 2006, al-Qassim — essentially a refugee from Libya who married an Afghan woman and had a daughter he has not seen since she was a baby — was also seized in Pakistan at a time when bounty payments for “terror suspects” were widespread, and foreign Arabs were easy prey, and he has been fighting in the U.S. courts to prevent his repatriation for nearly two years.
Another is Adel Fattough Ali El-Gazzar, an accountant and a former officer in the Egyptian army, who had traveled to the Pakistani border to provide humanitarian aid to Afghan refugees, but was caught in a U.S. bombing raid. “I saw a light and heard a voice and then I lost consciousness,” he explained in Guantánamo. “When I woke up I was in a Pakistani hospital. I lost my coat, my passport, my money, everything. And I lost my leg also.”
Then there are the Palestinians: Ayman al-Shurafa, a student whose education In Gaza was disrupted by the Intifada, who was persuaded to travel to Afghanistan for jihad, but who regretted his decision and never raised arms against anybody; Assem Matruq al-Aasmi, another duped young recruit, who was wounded by a grenade; and Mahar al-Quwari, an older man, with a wife and children, who had drifted to Afghanistan in search of work after a fruitless trip to visit the UN in Pakistan, to sort out papers for his family, but who ended up being sold by Afghan villagers to the Northern Alliance, who in turn sold him to the Americans.
Completing this brief guide to the cleared prisoners are the Uzbeks, whose government’s human rights abuses are notorious: Shakrukh Hamiduva, just 18 years old at the time of his capture, who was working as a taxi driver in Afghanistan when he was seized by Afghan bounty hunters; Ali Sher Hamidullah, a drifter who explained in Guantánamo that the Uzbek intelligence agents who visited him told him that “the only thing that waits for me in Uzbekistan is a bullet in my head”; Kamalludin Kasimbekov, who had been forcibly recruited to join the Islamic Movement of Uzbekistan, allies of the Taliban; and Oybek Jabbarov, a 30-year old father of two, who suffers from health problems related to a botched surgical procedure on a ruptured disk in his back in 2007.
Unwillingly transplanted to Afghanistan along with fighters from the IMU, Jabbarov explained in Guantánamo that he made a living “buying and selling sheep, chicken and goats,” and was told in December 2001 that the government was giving out ID cards to immigrants at Bagram airbase. “There, I saw American soldiers,” he said. “They just took me inside, they questioned me, and they kept me for a few days. I’ve been detained ever since.”
His lawyer, Michael Mone, who recently explained that he had taken on Jabbarov’s case because “I felt I could no longer stand on the sidelines and permit this gross executive power grab, which is how I view [Bush's] actions as they relate to torture, rendition, and the creation of Guantánamo as this [legal] black hole,” stated that his client had also been threatened by Uzbek intelligence agents. “They at one point showed him a photo array and asked him if he could identify any of the individuals,” Mone said in a recent interview. “And when he couldn’t identify any of them, one of the Uzbeks banged his fist on the table and said, ‘When you get back to Uzbekistan, you will know these things.’ And Oybek took that to mean that when he got back to Uzbekistan, they would torture him until he told them what they wanted to hear.”
I leave the final word to Spanish judge Baltasar Garzón, who has not always been a voice of reason when it comes to assessing the threat posed by terrorism, but who, on this occasion, captured a truth to which governments — including the US government — should pay close attention. As reported in the Los Angeles Times on Sunday, Garzon said, “We have to confront the reality that some bad people will end up walking the streets, like the former rapists, robbers and terrorists whom we have walking the streets once they complete their sentence and are released. We have to take the risks that are necessary in a democratic society.”
The alternative, lest we forget, is Guantánamo, as conceived by George W. Bush, Dick Cheney and Donald Rumsfeld, a place where, ideally, everyone is presumed guilty, no one is ever charged or tried, and no one is ever released.
Note: For those who are keeping count, the other 21 cleared prisoners are not apparently in immediate need of the assistance of third countries. Six are Saudis, whose release should be straightforward, as the Saudi government has run a successful rehabilitation program and has processed 109 returned prisoners in the last two years (with a low rate of recidivism, contrary to some recent reports), twelve are Yemenis (and there are hopes that the long diplomatic impasse between the US and Yemeni governments will soon be resolved, so that they can be repatriated), and the release of the other three — two Bosnians of Algerian origin, and Mohammed El-Gharani, a resident of Chad — was ordered by District Court Judge Richard Leon, when he recently ruled, in their habeas corpus reviews, that the government had failed to establish a case against them.