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“No Indefinite Detention at Guantánamo,” U.S. Claims, Defying Reality

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We live in surreal times. Barack Obama, who promised “hope and change,” has, instead, proven to be a worthy successor to George W. Bush as a warmonger and a defender of those in positions of power and authority who authorized the use of torture.

Moreover, when it comes to another hallmark of Bush-era crimes — indefinite detention without charge or trial for those whom the Bush administration identified as “enemy combatants” — Obama has gone further than his predecessor.

After the sustained paranoia of the first few years after the 9/11 attacks, Bush found his policies challenged by the Supreme Court and subjected to international criticism, and he began to back down. Obama, however, having promised to close Guantánamo, but then having discovered that it was politically difficult to do so, has contented himself with finding justifications for continuing to hold the 166 men still at Guantánamo, possibly for the rest of their lives.

That is in spite of the fact that more than half of them (86 men in total) were cleared for release by an interagency Guantánamo Review Task Force established in 2009 by Obama himself, consisting of around 60 officials from the main government departments and the intelligence agencies who met every week to examine the prisoners’ cases and to decide who should be released, who should be tried, and — shockingly — who should continue to be held without charge or trial, on the basis that they were too dangerous to release, even though insufficient evidence existed to put them on trial.

That was unacceptable, as the supposed evidence is no such thing if it cannot be used in a court of law. The injustice was compounded when Obama issued an executive order, which, first of all, specifically authorized the indefinite detention of those men (48 in total, reduced to 46 when two of them died in the prison), and, second, promised them periodic reviews of their cases, which, as was reported in December, have not taken place two years later.

Worse still, though, is the realization that almost everyone still held at Guantánamo is being detained indefinitely without charge or trial. As well as the 46 mentioned above, most of the 30 or so men who were supposed to face trials will not do so even though the court of appeals in Washington, D.C. — a notoriously conservative court — quashed two of the only convictions obtained in the military-commission trial system. The court pointed out that the crimes the men were accused of committing — providing material support for terrorism and conspiracy — were not crimes when the legislation was enacted and are not recognized war crimes.

The other 86 men — those cleared for release — are not going anywhere either. When Umar Farouk Abdulmutallab, a Nigerian man recruited in Yemen, tried and failed to blow up a plane bound for Detroit on Christmas Day 2009 with a bomb in his underwear, Obama responded to the hysteria that greeted that news by announcing a ban on the release of any Yemeni prisoners at Guantánamo, which is still in place more than three years later.

That is in spite of the fact that two-thirds of the men the president’s own task force recommended for release are Yemenis, and even though continuing to hold them constitutes imprisonment by nationality alone. If the tables were turned and some other nation were holding Americans solely on the basis of their nationality — having undertaken a process that had previously led to their being recommended for release — there would be national outrage.

The releases of the rest of the cleared prisoners have been blocked by Congress, where lawmakers have imposed onerous conditions on the release of prisoners, primarily obliging the Defense secretary to guarantee that any prisoner released to a country they regard as dangerous will not be able to engage in any kind of anti-American activities — a condition that seems to be impossible to fulfill.

Instead of standing up to Congress, or revisiting his ban on the Yemenis, Obama has been content to retreat to the safety of the laws passed under his predecessor to justify the detention of prisoners seized in the “war on terror” — in particular, the Authorization for Use of Military Force passed by Congress the week after the 9/11 attacks, which gave the president the right to pursue anyone he deemed to be connected to 9/11, al-Qaeda, or the Taliban and imprison him. In 2004, the Supreme Court confirmed that the president’s power to detain prisoners under the AUMF was to last until the end of hostilities — whenever that might be in a seemingly unending “war on terror.” When courage was required, Obama retreated into a shell and comforted himself that the AUMF means that he can continue to hold everyone at Guantánamo, for the rest of their lives, if no one makes it a pressing concern for him to do anything about the men abandoned on the naval base in Cuba, and if lawmakers continue to make life difficult for him.

Just last week, attorneys for the prisoners at the New York-based Center for Constitutional Rights, tried to break through that deadlock by calling the Obama administration to account at the only location available to them — the Inter-American Commission on Human Rights (IACHR), part of the pan-American Organization of American States (OAS) based in Washington, D.C. Although the IACHR cannot compel the United States to do anything it doesn’t wish to do, it was, at least, as the IPS News Agency reported, “the first time since President Barack Obama’s re-election that the U.S. government has had to publicly answer questions concerning Guantánamo Bay.”

IPS added, “Legal representatives for the detainees also presented disturbing eyewitness accounts of prisoner despair at the facility, brought on by prolonged indefinite detention and harsh conditions, that has led to a sustained hunger strike involving more than 100 prisoners at the U.S. base in Cuba.” I reported that here two weeks ago, when the government was claiming that there was no hunger strike. By last week, when the hearing took place, the growing media interest in the story had led to a concession that there were now 14 hunger strikers, and, by Wednesday, March 20, that number had risen to 25.

Although the IACHR has repeatedly called for the closure of the prison at Guantánamo Bay and has requested permission to meet with the prisoners, its requests have been ignored. Last week’s hearing was to enable the IACHR to learn more about what an attorney for the men held at Guantánamo described as an “unfolding humanitarian crisis” and, as IPS put it, “calling for an end to ongoing human-rights violations they say are being committed against the detainees.”

As well as attorneys, the commission heard “testimony from experts in law, health, and international policy, covering the psychological impact of indefinite detention, deaths of some suspects at Guantánamo, the lack of access to fair trials, and U.S. policies that have restricted the prison’s closure.”

Omar Farah, a staff attorney at CCR, told IPS, “In the 2008 campaign, both [John] McCain and Obama were squarely opposed to Guantánamo and agreed that this ugly hangover from the Bush/Cheney era had to be abandoned. But four years later, the political whims have completely reversed and there is almost unanimity that Guantánamo needs to remain open aside, from occasional platitudes from the president.”

Farah was, however, “clear in his view that reversing this trend is still well within President Obama’s power.” As he stated, “This is something that really calls for leadership from the president — he needs to decide if he wants Guantánamo to be part of his legacy. If the U.S. isn’t willing to charge someone in a fair process and can’t produce proper evidence of their crimes, then those prisoners have to be released. There is just no other way to have a democratic system. We’ve never had this kind of an alternative system of justice, and yet that’s what we have in Guantánamo.”

Despite the litany of complaints against Obama — his broken promise to close Guantánamo; the continuation of indefinite detention without charge or trial; the use of discredited military commissions; a refusal to hold anyone accountable for torture; and his embrace of drone strikes, a form of extrajudicial assassination from afar, as a replacement for any form of detention — the State department’s representative last week, Michael Williams, a senior legal advisor, refused to accept that anything was amiss.

As IPS described it, he “made extensive note of the health facilities and services that the U.S. government has made available for the detainees,” but, as the Miami Herald described it, he refused to answer a direct question by IACHR Commissioner Tracy Robinson of Jamaica, about “whether the administration had any specific plans to close the camps.” Instead, he “reverted to his notes about the administration’s efforts to transfer detainees,” stating that the administration “remains committed to transferring to other countries detainees at Guantánamo who’ve been cleared for release.” That does not, evidently include the Yemenis, as he also said that the administration has no plans in the “foreseeable future” to lift the moratorium on transferring Yemenis cleared for release that the president announced in January 2010.

Wiliams also refused to accept that indefinite detention was taking place at Guantánamo. He claimed, as IPS described it, that the United States “only detains individuals when that detention is lawful and does not intend to hold any individual longer than is necessary.”

Kristine Huskey, a lawyer with Physicians for Human Rights, was appalled. “The hopelessness and despair caused by indefinite detention is causing an extremely pressing and pervasive health crisis at Guantánamo,” she told IPS. “A person held in indefinite detention is a person deprived of information about their own fate. They are in custody without knowing when, if ever, they will be released. Additionally, they do not know if they will be charged with crimes, receive a trial, or ever see their families again. If they have been abused or mistreated, they also do not know if this will happen again.”

For Omar Farah, Williams’s testimony was “very disheartening” and “shocking.” As he explained, “They [the U.S. government] explicitly denied that there is indefinite detention, despite the fact that most of the prisoners there have been there for more than a decade without charge or trial.”

He added, “We are looking for the IACHR to remain actively engaged and hope that they will continue to put pressure on the U.S. government to comply with their international legal obligations toward these prisoners.”

While the hunger strike continues to rage, it may be that international pressure — not just from the IACHR, but from other concerned bodies, from media organizations, and from concerned citizens — may stir Obama from his inertia. It is to be hoped for, as it is also to be hoped that some just resolution can be found before any other prisoners die, like Adnan Latif, the Yemeni who died last September and was the ninth prisoner to die at the prison.

Note: For further information, see the CCR page on the hearing, which contains links to numerous documents.

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    Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.