This could be my last post on this topic hopefully now as we enter 2023, and do the 40 detainees still held at Guantánamo
(Gitmo). Talk of closing it has lingered long enough – either try
them and put them in permanent prison, or set them free… nothing in between.
This
update from the Smirking Chimp with this headline as we and the
detainees head into the 21st year of their captivity as “Middle East War Captives:”
“Guantánamo: Will America's Forever Prison Finally Close On Biden's
Watch?”
The Beginning:
In January 2002, the first planes landed at Guantánamo, the hooded, shackled,
goggled, and diapered prisoners in them were described by the Pentagon at the times as: “The worst
of the worst.”
In truth, however, most of them were neither top leaders of
al-Qaeda nor, in many cases, even members of that terrorist group. Housed at Camp X-Ray initially in open-air cages
without plumbing, dressed in those now-iconic orange jumpsuits, the detainees descended into a void, with
little or no prison policies to guide their captors. Then Brig. Gen. Michael Lehnert (now retired Maj. Gen in 2009),
the man in charge of the early detention operation, asked Washington for
guidelines and regulations to run the prison camp, Pentagon officials assured
him that they were still on the drawing board, but that adhering in principle to the “Spirit of the Geneva
Conventions” was, at least, acceptable.
Those first 100 days left General Lehnert and his officers
trying to provide some modicum of decency in an altogether indecent situation.
For example, Lehnert and those close to him allowed one detainee to
make a call to his wife after the birth of their child. They visited others in
their cells, talked with them, and tried to create conditions that allowed for
some sort of religious worship, while forbidding interrogations by officials
from a variety of U.S. government agencies without a staff member in the
interrogation hut as well. Against the wishes of then Secretary of Defense
Donald Rumsfeld and the Pentagon, a lawyer working with Lehnert called in
representatives of the International Committee of the Red Cross.
In March 2002, the U.S. installed prefab prisons at Guantánamo in which those
detainees could be all too crudely housed and had brought in a new team of
officers to oversee the operation while pulling Lehnert and his crew out.
The new leadership included people reporting directly to
Rumsfeld as they put in place a brutal regime whose legacy has lasted, in all
too many ways, to this day.
Despite General Lehnert's efforts, in the nearly 21 years
since its inception, Guantánamo has successfully left the codes of American
law, military law, and international law in the dust, as it has morality itself
in a brazen willingness to implement policies of unspeakable cruelty. That
includes both physical mistreatment and the limbo of allowing prisoners to
exist in a state of indefinite detention. Most of its detainees were held
without any charges whatsoever, a concept so contrary to American democracy and
legality that it's hard to fathom how such a thing could happen, no less how
it's lasted these 7,627 days.
Geo. W. Bush's
Prison: As the 40 prisoners still in Guantánamo illustrate, no
president has yet found a way to close that prison completely. George W. Bush,
who opened it, did eventually acknowledge that it would be best to shut it
down. As he said to a German television audience in May 2006: “I very
much would like to end Guantánamo. I very much would like to get people to a
court.”
He was, however, anything but decisive on the subject. As he
told a White House press conference that June: “I'd like to close
Guantánamo, but I also recognize that we're holding some people that are darn
dangerous, and that we better have a plan to deal with them in our courts. And
the best way to handle — in my judgment, handle these types of people is through
our military courts.” That month the Supreme Court invalidated
the ad hoc military tribunals that had by then been formed at Gitmo.
In the fall of 2006, Congress passed the Military Commissions Act (MCA), formally creating the
courts Bush had imagined.
Pointing out that shuttering the prison was not
as easy a subject as some may think on the surface, Bush began pursuing another approach — namely, releasing uncharged prisoners and
returning them to their home countries or transferring them elsewhere.
Bush and his administration did, in the end, release about 540 of the 790 prisoners held there with as accepted
its last prisoner in March 2008. Meanwhile, a
2008 Supreme Court ruling granting detainees the right to challenge
their detention by filing habeas corpus petitions in federal court opened a new
path toward future freedom. Twenty-three of those detainee petitions were
granted before Bush left office, but the prison, of course, remained open.
Barack Obama's
Well-Intentioned but Failed Efforts: Barack Obama initially signaled
his desire to close Guantánamo on the campaign trail and then, in one of his
first acts as president, issued an executive
order calling for it to be shut down within a year, writing: “If any
individuals covered by this order remain in detention at Guantánamo at the time
of closure of those detention facilities, they shall be returned to their home
country, released, transferred to a third country, or transferred to another
United States detention facility in a manner consistent with law and the
national security and foreign policy interests of the United States.”
With new energy, the Obama administration plunged ahead on
the two fronts Bush had halfheartedly pursued: establishing military
commissions and transferring certain prisoners directly to their home countries
or others willing to accept them.
On Obama's watch, a reformed version of the Guantánamo
tribunals was reauthorized by the passage in 2009 of the new MCA, resolving
five cases, all with guilty pleas. That administration edged toward closure and
transferred nearly 200 more prisoners to willing countries in a
vigorous effort over the final year and a half of Obama’s term.
Still, Obama encountered opposition within Congress.
Although the military commissions did start anew under Obama, so many years
later, the trial of the five prisoners alleged to have been
actual 9/11 co-conspirators has still not been scheduled – and that includes leader
KSM.
In addition, under Obama, numerous habeas corpus petitions
were filed in federal court, often falling victim to defeat in appellate
courts. As Shayana Kadidal, the Center for Constitutional Rights' senior
managing attorney for Gitmo litigation, summed it up at Just Security: “By 2011, the sharply
conservative D.C. Circuit rendered it more or less impossible for detainees to
prevail on their habeas petitions.”
Obama's team did seem to add a new possibility for aiding
the closure process by transferring one detainee to federal court for trial on terrorism charges.
In 2010, Ahmed Ghailani
stood trial in New York City for participating in the bombings of two U.S.
embassies in East Africa. He was found guilty and sentenced to life in prison
on U.S. soil.
But in the end, that trial proved fraught with problems, including the
fact that the defendant was acquitted on 284 of 285 charges and so it would
prove to be not just the first but the last such trial. In fact, in the 2011 NDAA, Congress included a ban on the transfer to the
United States of any further Gitmo detainees for any reason whatsoever.
All told, though the Obama
administration poured far more energy into the effort to close Gitmo than the
Bush administration had. In his last year, Obama continued to push hard with the rallying cry: “Let's go ahead and get this thing
done!”
He called for renewed
federal trials on U.S. soil and prisoner incarceration in the United States,
noting that Guantánamo was “contrary to our values and undermines our standing
in the world not even to mention the $450 million annual price tag for keeping
it open.”
Obama put the blame for failure squarely on the growing
political divide in the country and openly worried about what it meant not to succeed, saying: “I
don't want to pass this problem on to the next President, whoever it is.”
(And,
of course, we now know just who he was talking about: Donald J. Trump)
Donald Trump's “Bad
Dudes” policy: Not surprisingly, passing Guantánamo on to Trump
fulfilled whatever misgivings he had. Unlike Bush and Obama, Trump displayed no
interest whatsoever in closing it. His instinct was to reaffirm its standing as
a legal black hole. On the campaign trail in 2016, in fact, he swore: “We're gonna load it up with some
bad dudes, believe me, we're gonna load it up.”
(On taking office, almost instantly signed an executive order
to keep Gitmo open).
No new detainees were
actually added during his term in office. In 2020, Trump even suggested it should house people infected with CoVID,
but as it turned out, expanding its activities was as elusive a goal for Trump
as closing it had been for his predecessors.
While his threats of
adding inmates amounted to naught, his presidency basically put that prison camp
on pause. He even stopped the process of transferring five detainees cleared for release by the Obama team.
Only one prisoner, Ahmed
Muhammad Haza al-Darbi, who pleaded guilty in 2014 in the military commissions,
was released during Trump's time in office.
Meanwhile, the military commissions remained essentially stalled on his watch
and Congress continued the ban on moving any of the detainees to the U.S.
Now Biden's Gitmo: When
Joe Biden entered office in January 2021, 40 prisoners remained at Gitmo.
In his first weeks, his aides called for a formal review of
their cases and spokesperson Jen Psaki announced the Biden’s intention
to close the prison camp before he leaves office. Biden learned from Obama's
mistakes thus making no sweeping public promises.
His administration nonetheless put renewed energy into both
transfers and trials. The military commissions have indeed ramped up in recent
months. Pretrial hearings have recently been held in the four pending military
tribunal cases. In addition, plea deals that would take the death penalty off the
table are reportedly being negotiated for the five 9/11 defendants including KSM.
Three of the five
detainees cleared for release by the Obama administration have finally
been transferred to other countries, while all but three of
the 27 prisoners not cleared when Biden took office have been greenlighted to
go home or to a third country. In doing so, several previously blocked
thresholds were crossed.
As of early 2021, when the government cleared detainee Guled
Hassan Duran, it signaled that, for the first time, there was a willingness “to
release even those who had been subjected to torture while held at CIA black
sites in the early years after 9/11.”
The point was made even more strongly three months later
when Mohammed al Qahtani, who experienced some of the worst treatment at American hands,
was also finally released.
Meanwhile, in September 2022, President Biden appointed
former State Department coordinator for counterterrorism and former ambassador
to Kosovo, Tina Kaidanow, to oversee the transfer of prisoners cleared
for release. While her position doesn't replicate the formidable office of the
Special Envoy for Guantánamo Closure that Obama established and Trump nixed, it
is a promising move. Her job of arranging each prisoner transfer, assuring the
security of the detainee, and assessing that the release will not pose a danger
to the United States is challenging but achievable, as prior releases have
demonstrated.
All told, recidivism rates for Guantánamo detainees,
as reported by the DNI, have been 18.5%, though only 7.1% for
those released under Obama.
The last question
after all these nightmarish years might be this: Are there any options
for the final Gitmo prisoners and closure of that place?
In 2017, military
defense lawyers Jay Connell and Alka Pradhan, joined by researcher Margaux
Lander, and pointed out: “That international law, victims
of torture, and cruel, inhuman and degrading treatment have the right to full
rehabilitation.”
In addition to seeking the removal of the death penalty in
their cases, the 9/11 defendants at Gitmo have reportedly asked for access to a
torture rehabilitation program.
Pradhan, who represents 9/11 defendant Ammar al Baluchi has summed the
situation up well: “The United States has utterly failed to give these men
either a fair trial or medical treatment for their torture in violation of
their legal obligations. Most of the evidence in the 9/11 case is
torture-derived, and the men are deteriorating quickly from the brain and other
injuries inflicted by U.S. torture nearly 20 years ago. The Department of
Defense has confirmed that they don't currently have the ability to provide
complex medical care at Guantanamo, so the most ethical solution is to transfer
the men to locations where they can obtain the care they require.”
In fact, after all these years in prison, releasing those
who might otherwise still stand trial and putting them in rehabilitation
centers might indeed be a good idea. There are many ways to address a wrong.
Arguably, the greater its magnitude, the more leeway should be given for
subsequent actions. As the Biden administration has taken steps towards closing
Gitmo, perhaps the gesture of sending the defendants in the military
commissions to rehabilitation programs is a good one.
For years, Gen. Lehnert
has told Congress, media outlets, and anyone who would listen that it remains
imperative, however difficult, to finally shut the prison down.
As he has written: “Closing Guantánamo is about reestablishing
who we are as a nation.”
It might not quite accomplish that, but it would certainly
be a formidable step in that direction. After all, its legacy of torture,
indefinite detention without charges or trials, and the reckless disregard for
the rule of law will no doubt haunt us for years.
There is no way to fathom the harm caused by the torture,
cruel treatment, legal limbo, injustice, and dehumanization that has become the
definition of Guantánamo. But for the first time in all these years, its actual
closure might realistically be on the horizon.
My 2 Cents: There is
nothing in this article that I disagree with and as an old interrogator myself,
I know and support the idea firmly that “torture does not work and is a serious
and unprofessional tactic for us.”
Yes, this post is long but comprehensive and
long overdue to reinforce the argument: Shut Gitmo down ASAP.
I say give those who need
a trial for their crimes justice and then punish them or set them free depending
after a fair trial and jury decision – that is the American way.
Holding them this long without
justice is just not right – imagine if North Korea or North Vietnam were still
holding our military POWs all these years behind bars in their Gitmo style
confinement? Serious question isn’t it?
Thanks for stopping by.
