On the eighth anniversary of the opening of Guantánamo, the fate of the 198 prisoners still held is, in many ways, no clearer than it was a year ago. President Obama has released 42 men since taking office on January 20, 2009, but has already admitted that he will miss his self-imposed deadline for the prison’s closure on January 22.
The 103 Prisoners Cleared for Release
On this gloomy anniversary, 103 of the men still held have been cleared for release by an interagency task force established by Obama on his second day in office, but their chances of regaining their freedom any time soon are remote. Having failed to seize the initiative last April by rehousing several cleared prisoners in the United States (the Uighurs), Muslims from China’s Xinjiang province, who were swept up mistakenly in a largely indiscriminate dragnet following the invasion of Afghanistan in October 2001), the administration then watched impotently as Congress passed legislation preventing any cleared prisoner from being rehoused on the US mainland. Shorn of this option, the 17 Uighurs – and dozens of other cleared prisoners from countries including Algeria, Egypt, Libya, Syria, Tunisia and Uzbekistan, who, like the Uighurs, cannot be repatriated because of fears that they would be tortured or otherwise ill-treated on their return – have had to hope that other solutions could be found.
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The administration found new homes for ten of the Uighurs in Bermuda and Palau, and countries in Europe took nine other cleared prisoners, but this still leaves dozens of men who may languish in Guantánamo for the rest of their lives unless the administration – or the American people – acknowledge that the only acceptable response is to give them new homes in the United States. In October, citizens in Amherst, Massachusetts, indicated one way forward, passing a resolution asking Congress to overturn its ban, and offering to accept two prisoners – Ahmed Belbacha, an Algerian, and Ravil Mingazov, a Russian – and an escape route from this unacceptable impasse would be for other communities to follow Amherst’s example, and to begin to build a nationwide movement demanding that America take responsibility for cleaning up its own mistakes, rather than asking European allies to do it for them.
Not every cleared prisoner is from a country with a notoriously poor human rights record. Around 40 of the men approved for release are Yemenis, but releasing any of these men initially required the government to overcome its squeamishness about freeing men to a country that presents security concerns, and its unjustifiable fears that they might have been radicalized by their detention.
This was revealed in October in the case of Alla Ali Bin Ali Ahmed, a student seized in Pakistan, whose release had been ordered in May by District Court Judge Gladys Kessler, after she demolished the government’s case against him in his habeas corpus petition. Despite this ruling – and the fact that his lawyer had noted that Ali Ahmed was known as “the sweet kid” in Guantánamo – government officials told The New York Times that “Even if Mr. Ahmed was not dangerous in 2002 … Guantánamo itself might have radicalized him, exposing him to militants and embittering him against the United States.”
Hysteria Regarding Yemeni Prisoners and Alleged Recidivists
When Umar Farouk Abdulmutallab, a Nigerian, attempted to blow up a flight from Amsterdam to Detroit on Christmas Day, critics seized on his alleged connections to an al-Qaeda-inspired terrorist group in Yemen to argue that no more Yemeni prisoners should be released. These critics drew on largely inaccurate or unsubstantiated reports that Abdulmutallab had been working with Saudis released from Guantánamo, and overlooked the fact that any Saudi ex-prisoners involved with terrorism in Yemen had been released by George W. Bush, in spite of the intelligence agencies’ concerns that they posed a threat to the US. Also overlooked was the fact that there was no valid reason to suppose that Yemenis held for eight years in Guantánamo, whose connections to any sort of terrorist activity had not been established, would join a terrorist group in their homeland on their return.
The critics’ argument, such as it was, suggested that nationality alone was enough to prove the existence of connections with terrorists (an appallingly broad and ill-defined allegation, which, nonetheless, went largely unchallenged). Moreover, in response to a campaign of almost unprecedented hysteria, mounted by opportunists whose main aim was to prevent the closure of Guantánamo, President Obama capitulated last week, declaring that no more Yemenis would be transferred in the imminent future, and casting a profound gloom over the prison on today’s baleful anniversary.
This was bad enough, but the day after Obama’s announcement, the Pentagon claimed that it had a new report demonstrating that one in five prisoners released from Guantánamo has become involved in terrorist activities. It would be hard to find a more naked example of the use of propaganda, as no evidence was provided for this claim, and last May the Pentagon’s claim that one in seven released prisoners were recidivists was thoroughly debunked by diligent researchers, who demonstrated that the true figure was somewhere between 2 and 4 percent.
Nevertheless, the mainstream media not only reported the Pentagon’s claims uncritically; they also failed to question its timing, and failed to ask whose agenda was being served, and whether, in fact, certain figures within the Pentagon were as determined to wreck Obama’s plans to close Guantánamo as hysterical Republicans and cowardly Democrats in Congress.
A New Wave of Hysteria
It remains to be seen if Obama’s capitulation – and the shameful response to the Pentagon’s unsubstantiated propaganda – will fatally derail his plans to close the prison, but already reports are circulating that lawmakers are demanding a halt to any proposed transfers to other countries regarded as unstable – or any further releases at all. The rush towards “guilt by nationality” was led by Sens. Lindsey Graham (R-South Carolina) and John McCain (R-Arizona). On Thursday, in a letter to President Obama, the two senators praised his decision to freeze the transfer of Yemeni prisoners but added, “We ask that you expand that order to include the transfer of detainees to countries that have a significant Al-Qaeda presence, at a minimum: Afghanistan, Pakistan, Saudi Arabia, Somalia, Algeria and Sudan.”
As AFP described it, Senators Graham and McCain also “criticized the president’s approach to releasing detainees from the notorious facility, saying it lacked coherent standards,” and declared that they were “profoundly troubled by the questionable nature of the assurances” from some of the prisoners’ home countries regarding monitoring or continued detention.
Another critic was Rep. Mark Kirk (R-Illinois), who claimed, “All of the major leaders of the Taliban in the south of Afghanistan are former Gitmo releasees” (a wildly exaggerated claim that also ignored the Bush administration’s responsibility for freeing Taliban leaders from Guantánamo without consulting authorities in Afghanistan who would have been able to identify them), and further criticism has focused on plans to transfer two more prisoners from Guantánamo.
According to legislation passed by Congress, the administration must provide 15 days’ notice before releasing any prisoner, even though Lt. Col. David Frakt, a former military attorney in Guantánamo’s military commissions, has called this requirement “blatantly unconstitutional as a violation of the separation of powers,” and an example of “Congressional depravity on any issues related to detainees.” On Friday, The Hill reported that it had learned that the State Department notified Congress on December 22 of its plans to transfer two more prisoners, prompting another wave of opportunistic indignation.
Rep. Pete Hoekstra (R-Michigan), the ranking member of the House Intelligence Committee, said that he was “concerned about just one of the two latest detainees set for transfer.” The other, he said, was going to a country “of no concern” – presumably somewhere in Europe. He added that it “baffles the brain” that “We continue to send people back to countries that have weak central governments and ungoverned areas.” But his comments were tepid compared to those of Stephen Miller, a spokesman for Sen. Jeff Sessions (R-Alabama), the ranking member of the Judiciary Committee.
“We are deeply concerned about pending transfers on the heels of the Christmas Day bombing and news reports suggesting that even more released GITMO detainees have returned to militant activities than previously thought,” Miller said, adding, “All transfers should be put on hold until there has been a chance to analyze emerging numbers about the threat of recidivism, and to begin patching the cracks in the system laid bare by the Christmas day bomb plot.”
Missing in all this hysteria is any acknowledgment that, in contrast to the Bush administration’s often careless release of prisoners for diplomatic reasons and with insufficient safeguards (in the cases of a handful of Saudis and a handful of Afghan Taliban leaders), the Obama administration has been extremely cautious about releasing prisoners from Guantánamo, and has no intention of repeating the previous administration’s mistakes. In this regard, Senator Sessions’ comments are particularly unhelpful, as his talk of “cracks in the system” suggests, with no justification whatsoever, that some kind of line can be drawn between the screening of airline passengers and the appraisal of Guantánamo prisoners by a government task force.
The Other 95 Prisoners: Dubious Plans and Congressional Obstruction
For the majority of the remaining 95 prisoners, the future is no less uncertain. Although the administration has put six men forward for federal court trials (see here and here), it also revived the much-criticized military commission trial system, in conjunction with Congress, and announced its intention to hold other prisoners indefinitely without charge or trial, based on the powers granted by Congress in the Authorization for Use of Military Force, passed the week after the 9/11 attacks.
Critics, understandably, were enraged by these developments, pointing out that indefinite detention without charge or trial is an abomination that serves only to perpetuate the fundamental lawlessness of the Bush administration’s policies, and also pointing out that the administration has, effectively, established a three-tier system for dealing with the prisoners that makes a mockery of justice.
In addition, I have explained that the administration’s insistence on claiming that it will, in Obama’s words, continue to hold without charge or trial those who “cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States,” is not only a vile precedent, but also an unnecessary one. Throughout the year, the district courts have demonstrated, in dealing with the prisoners’ habeas corpus petitions, that they are perfectly capable of ascertaining whether there is sufficient evidence to continue holding prisoners. Providing an objectivity and an openness that appears to elude the task force, the courts have granted 32 out of 41 habeas corpus petitions, and their deliberations still represent the best hope for justice for the majority of the men still held.
Noticeably, however, Obama’s main problem in dealing with the cases of these 95 men concerns his plans to close Guantánamo and move them to the US mainland. Although the administration has chosen the Thomson Correctional Center in Illinois as a suitable venue, Congress has so far refused to provide the funds to allow the transfers to take place. Even if this approval is forthcoming this year, officials have conceded that the necessary adjustments to the prison’s security would mean that it is unlikely to open until 2011.
The only bright spot in this otherwise dispiriting story is that the delay will at least allow the district courts to continue ruling on the prisoners’ habeas petitions, whittling away at the prison’s population until, hopefully, only those regarded as a genuine threat to the United States and with verifiable connections to terrorism remain. My research, conducted over four years, indicates that the maximum number of prisoners who fit this category is around 40, and certainly not the 95 touted by the administration.
Nevertheless, the imminent failure to close the prison by January 22 is a great disappointment, and the current level of fear mongering is so hysterical, and so disgracefully supported by the mainstream media, that almost every aspect of the prison’s closure will be an uphill struggle.
Eight years after this monstrous experiment in lawless detention and abusive interrogation first opened, this is hardly a good note on which to conclude a review of Obama’s first year, but it is painfully apparent that, in general, courage has been lacking in the administration’s response to Guantánamo. The president would do well to consider that, by attempting to deal pragmatically with his critics and with the baleful legacy he inherited, he continues to undermine the unwavering principles that are needed not only to remove this stain on America’s image and to bring true justice to those still held, but also to fully repudiate the Bush administration’s reckless – and criminal – overreach.