The prison at Guantánamo is such an extraordinarily lawless and unjust place that 86 prisoners who have been cleared for release by an interagency task force (established by President Obama when he took office in 2009) are still being held there.
Many other prisoners who have been recommended for trials languish, year after year, with no hope of justice. And 46 more have been specifically recommended for indefinite detention without charge or trial. These prisoners are held on the basis that they are too dangerous to release, even though there is insufficient evidence to put them on trial.
That means, of course, that the supposed evidence is fundamentally untrustworthy — a dubious mélange of unreliable intelligence reports and statements extracted through the use of torture — but the government refuses to acknowledge that unpalatable truth.
Instead, the men have been obliged to resort to a hunger strike, now in its sixth month, to wake the world to their plight and to put pressure on the administration to act. Eight weeks ago, President Obama delivered an eloquent speech about national security, in which he perfectly described how unjust and counterproductive Guantánamo is, and promised to resume releasing prisoners. But he still has not released a single cleared prisoner, and nor has he initiated reviews for the 46 men whose indefinite detention he authorized in March 2011, when he promised to establish Periodic Review Boards to review the men’s cases and establish whether they continue to be regarded as too dangerous to release.
In an effort to break through this deadlock, the attorney for one particular prisoner has submitted an unusual request to the court in Washington, DC, considering his habeas corpus petition. This potential route out of Guantánamo has also generally been blocked — this time by judges in the appeals court in the capital (the DC circuit court). These politically motivated judges rewrote the evidentiary rules governing the petitions because they were angered that dozens of prisoners had their habeas petitions granted by a lower court (after the Supreme Court confirmed in June 2008 that the prisoners had constitutionally guaranteed habeas rights).
However, Jennifer Cowan, the attorney for Ibrahim Idris, a Sudanese prisoner in his early 50s, has asked the court to release her client because he is so mentally ill and so morbidly obese that he cannot be regarded as a threat. In Hamdi v. Rumsfeld, in June 2004, the Supreme Court stated that the law used to hold prisoners at Guantánamo, the Authorization for Use of Military Force (AUMF), passed the week after the 9/11 attacks, only allowed the government to hold a prisoner “for the purpose of preventing him from returning to the battlefield.”
However, Idris, as the Miami Herald described him, is “an obese, diabetic, schizophrenic Sudanese man who has mostly lived at Guantánamo’s psychiatric ward since he got to the US terror prison in Cuba on the day it opened.”
As Jennifer Cowan described the situation in her submission to Chief Judge Royce Lamberth,
Petitioner’s long-term severe mental illness and physical illnesses make it virtually impossible for him to engage in hostilities were he to be released, and both domestic law and international law of war explicitly state that if a detainee is so ill that he cannot return to the battlefield, he should be repatriated. When interpreted in accordance with domestic law and the principles of international law, the Authorization for the Use of Military Force (“AUMF”) does not permit the continued detention of Mr. Idris.
Little was known about Idris until this submission, although it was established last September that he was one of the prisoners cleared for release by the Guantánamo Review Task Force. His Detainee Assessment Brief (DAB), the classified military file released by WikiLeaks in 2011, ought to be a source of shame to the authorities. “Detainee has resisted cooperation with interrogators and remains largely unexploited,” the document stated, adding, “He has coached other JTF-GTMO detainees to use resistance techniques while in U.S. custody.”
In fact, as Carol Rosenberg explained in the Miami Herald, far from coaching others, Idris “behaves bizarrely — wears his underwear on his head, whispers to himself, is delusional.” As a result, “his fellow prisoners don’t want him around.”
The 14-page petition is backed by medical reports from the prison, and constitutes a sad indictment of a detention system that cannot deal fairly and appropriately with a severely ill prisoner. In page after page of the brief and the medical reports, the government’s myopic narrative — that Idris was at the Battle of Tora Bora in Afghanistan, the showdown between the United States and al-Qaeda and the Taliban in December 2001 — is countered by the recognition that Idris’s thought processes are “grossly disorganized,” as an Army psychiatrist explained in 2009, and that he operates “in a delusional reality system, with little foundation in his real-world circumstances.”
As Jennifer Cowan explained to the Miami Herald, “If you’re so sick that you can’t return to the battlefield, there’s no basis for holding you.” She added that Idris “has multiple illnesses. He has mental illnesses, which are severe, physical illness that’s long-standing, and nobody thinks he’s going to recover from any of those. It’s not like he has a cold.”
The saddest part of this whole sorry tale is that the Army psychiatrist stated that Idris “was diagnosed as having a mental illness within weeks of getting to Guantánamo,” and yet no effort was made to repatriate him, even as other Sudanese prisoners were sent home by George W. Bush and Barack Obama.
The time is long overdue for Idris to be returned to his family, but on past evidence it is unlikely that the government — and specifically the Civil Division of the Justice Department, which deals with the prisoners’ court cases and has an unbroken record, from Bush to Obama, of aggressively contesting everything relating to their habeas corpus petitions — will agree. That, of course, is another source of shame to add to the countless others in Guantánamo.