Guantánamo and the 2016 Election

Part of the Series

Beyond the Sound Bites: Election 2016

Similar to the 2004 presidential election, the issues of terrorism and torture are being politicized in the 2016 election. For this election, the backdrop is the rise of ISIS (also known as Daesh), which was created as a result of the war in Iraq and has spread throughout the Middle East and North Africa, along with terrorist attacks and mass shootings in parts of the Europe and the United States. This backdrop has allowed Republicans from Donald Trump to Mitch McConnell to ramp up calls for torturing people, keeping the prison at Guantánamo Bay open and to continue a foreign policy of belligerent militarism.

President Barack Obama’s campaign promise to close the Guantánamo Bay detention facility when he took office never came true. Now, despite Obama’s rush to release more detainees before he leaves office, Guantánamo will remain open when the next president comes in. Obama’s failure to close the Guantánamo Bay detention facility, alongside his maintenance of the policies of indefinite detention and perpetual war, leave behind an infrastructure to help the next president to continue the same practices.

There are currently 76 detainees remaining in the Guantánamo detention facility. Of those, 40 remain in indefinite detention and 29 detainees are cleared for release. Indefinite detainees are deemed too difficult to prosecute — largely due to tainted evidence or lack of admissible evidence (some produced through torture) — or too dangerous to release. Those detainees will be held until the end of hostilities in the global “war on terror,” which essentially makes them prisoners of war in an endless war — even though perpetual war defies international law.

The law that in effect gives the president perpetual war powers — including the extrajudicial killing program — is the 2001 Authorization for Use of Military Force (AUMF), which authorized the president to use the US Armed Forces against those responsible for and complicit in the 9/11 terrorist attacks, which is mainly al-Qaeda. Under the Obama administration, the AUMF has been interpreted and stretched to the cover co-belligerents or “associated forces” of al-Qaeda such as the militant group al-Shabaab in Somalia, and it is now used to justify attacks against ISIS.

Almost 15 years after 9/11, the military commission’s “pretrial hearings” of the five alleged 9/11 plotters still trudges along with no end in sight. For the past two years, the process has stymied and hearings have been cancelled due to allegations of government intrusion and conflicts of interest.

The recent delays started in April 2014 when it was revealed that the FBI approached a defense security officer on the legal defense team for Ramzi bin al-Shibh, one of the five alleged plotters of the 9/11 attacks and a defendant in the case. The FBI tried enlisting the defense security officer in an informant “relationship” with the agency. Defense attorneys argued that FBI agents infiltrating their teams to recruit informants constituted a conflict of interest and created an atmosphere of distrust, thereby making it difficult for the lawyers to do their job. In October 2015, the military commissions judge US Army Col. James L. Pohl ruled that FBI infiltration of defense teams presented no conflict of interest.

In April 2016, the military commission judge abruptly cancelled two weeks of pretrial hearings after receiving a secret filing by US Attorney Fernando Campoamor-Sánchez. Campoamor-Sánchez is head of a Special Review Team from the US Department of Justice, appointed by military commissions chief prosecutor Army Brig. Gen. Mark Martins to update the judge on any FBI investigations of the defense teams. The file was labelled “ex parte,” meaning only the judge could see it. Therefore, no one else knows what the file contained.

“One of the problems of us not knowing is that every lawyer now operates under a cloud because we know there’s an investigation of some kind going on but we don’t know [of] whom. So we all have to assume it’s of ourselves,” said James Connell, defense attorney for defendant and alleged 9/11 plotter Ammar al-Baluchi, in an interview with Truthout. “More to the point, the fact that everyone has to assume that they’re being investigated means we all have to work [while] glancing over our shoulder all the time. And all of the handling of classified information that we do, all of the overseas travel that we do, all of the pleadings that we write, we all have to do that knowing that there’s an investigation out there and wondering: Could it be us?”

Secrecy about the US government’s torture program has continued to plague the military commission system, as there is an injunction barring what defense lawyers can and cannot say about how their clients were treated in CIA detention. All five of the defendants were held and tortured in CIA black sites before being sent to Guantánamo in September 2006. Much of the information about their confinement in CIA black sites remains classified. Even though detainees are now allowed to speak more openly about their thoughts and memories in CIA detention, certain details are still classified. US Navy Commander Walter Ruiz, defense attorney for defendant and alleged 9/11 financier Mustafa al-Hawsawi, told Truthout that detainees’ thoughts and memories of CIA detention are still classified “to the extent that they would reveal specific torture techniques, locations of the black sites and identities of the personnel.”

Republicans Block Guantánamo Closure

At the prison camps, many Guantánamo detainees are aging well into their 50s and 60s, with the oldest being 68 years old. As the detainee population gets older, the prison could be incapable of meeting their medical needs. Guantánamo may have to add accommodations for wheelchairs. Prison staff and military officials are now looking at operating an offshore penal colony in Cuba long after Obama leaves office. Ruiz also mentioned that there has been new construction at the Guantánamo prison camp checkpoint, a sign that the detention facility is not planning on downsizing anytime soon.

In Washington, Republicans have remained steadfast in their opposition to closing the Guantánamo Bay detention facility. Congressional Republicans have repeatedly passed legislation prohibiting the transfer of Guantánamo detainees — namely the indefinite detainees — to US soil. Both the House and Senate versions of the 2017 National Defense Authorization Act (NDAA) retain prohibitions on transferring Guantánamo detainees to US soil. The Senate version does allow temporary transfer to US soil for emergency medical treatment but detainees must be returned to Guantánamo “as soon as feasible.” The House and Senate passed their versions of the NDAA.

President Obama has threatened to veto the 2017 NDAA over the provisions hindering his efforts to close the Guantánamo detention facility. However, the administration has decided against employing a more direct route to closing the prison: issuing an executive order. According to Reuters, for a few years, White House lawyers and officials studied the option of overriding the Congressional ban on detainee transfers “but did not develop a strong legal position or an effective political sales pitch in an election year” and, therefore, it was not seen as a “viable strategy.”

Thus, Republicans have been victorious in their efforts, and are currently working on legislative plans to prevent Guantánamo’s closure under a new president in 2017. On top of that, many Republicans are going further by openly embracing torture and advocating keeping Guantánamo open to detain future suspected terrorists in the ongoing, perpetual war against “terrorism.” Republican Congressman Mac Thornberry (R-Texas), chairman of the House Armed Services Committee, called for bringing back the threat of torture to fight terrorists.

“We have gone overboard in ruling out all sorts of options which only simplify the enemy’s calculations,” Thornberry said during an announcement of the GOP’s national security strategy at the Council on Foreign Relations, according to The Washington Post. “I am not for putting a bunch of things into law that we’re not going to do, I’m for leaving them guessing, and I think that is more effective.”

In January 2016, Republican Senator and Senate majority leader Mitch McConnell not only pledged to fight Obama’s plans to close Guantánamo, but also called for keeping it open to detain more people. According to the Guardian, McConnell said, “Guantánamo ought to stay open. It’s the perfect place for terrorists.” The Senate majority leader added, “I’m a supporter of Gitmo. I think it ought to stay open. I think we ought to add more terrorists to it and we ought to interrogate them there and if it is concluded that they should be tried, they should be tried by military commission.”

Republican presidential nominee Donald Trump said he favors waterboarding and other torture techniques, arguing that “torture works” and “we have to beat the savages.” If elected, Trump promised to bring back waterboarding and “a hell of a lot worse than waterboarding.” He also called for killing terrorists’ families, a form of extrajudicial killing that violates international law. Last year, Trump went so far as saying, in a leaked memo, that he would put American supporters of ISIS in Guantánamo Bay.

Even though Trump walked back comments that he’d order the US military to violate international law and torture people, he recently renewed his praise of torture. At a rally in Ohio, Trump said of waterboarding, “I like it a lot and I don’t think it’s tough enough,” to a cheering crowd. “We have to fight so viciously and violently because we’re dealing with violent people, vicious people,” he continued, with more cheers from the crowd. Trump said that laws banning torture make the United States look weak compared to ISIS’ brutality and proclaimed, “You have to fight fire with fire.”

Democrats’ Weak Opposition

While the Republicans continue to chest-thump about torturing people, keeping Guantánamo open and continuing the US war machine, the Democrats have not put up a very effective opposition. If anything, Democrats’ opposition amounts to rearranging chairs on a sinking ship by continuing the perpetual war machine by different means.

Obama’s plan to close Guantánamo has faced obstacles within his own administration. Attorney General Loretta Lynch has blocked the Obama administration’s plan to allow Guantánamo detainees to plead guilty to terrorism charges in federal court via video-conference. According to Reuters, “If enacted into law, the Obama-backed plan would allow detained terrorism suspects who plead guilty to serve their sentences in a third-country prison, without setting foot on U.S. soil.” Obama administration officials argue that the video conference proposal could reduce the number of indefinite detainees to between 10 and 20, which would make it “easier to win support for closing the facility,” according to Reuters. However, Lynch argued that having defendants pleading guilty via video conference goes against criminal procedure law and “that federal judges may rule that such pleas are in effect involuntary, because Guantánamo detainees would not have the option of standing trial in a US courtroom.”

The Hillary Clinton campaign did not respond to questions about how a Clinton administration would approach Guantánamo policy. However, Clinton, like Obama and most Democrats, has long supported closing the Guantánamo Bay detention facility. In a January 2013 memo to Obama, then-Secretary of State Hillary Clinton urged the president to step up efforts to close the Guantánamo Bay detention facility since stalling would erode public and congressional support for closing it. One of the efforts Clinton suggested was to designate a senior White House official “to lead all GTMO efforts” and speed up the transfer process. Clinton has promised to continue Obama’s legacy, which could mean that a Clinton presidency would largely maintain the Obama administration’s Guantánamo closure plan.

Obama’s Gitmo North

However, even closing Guántanamo would not necessarily mean freedom or a fair trial for detainees. The Obama administration’s plan for closing Guantánamo has always involved simply transferring the practices of indefinite detention and military commissions to US soil. Under Obama’s recent proposal, the detention facility at Guantánamo Bay would close, but a certain number of detainees would still be indefinitely detained at a federal prison or similar facility in the US. Of course, this is nothing new. Months after Obama became president, in May 2009, he acknowledged that after Guantánamo’s prospective closure, the policy of indefinite detention would continue, arguing, “There may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States.”

Meanwhile, more details about the CIA’s torture program have been released. A recent transparency lawsuit by the ACLU revealed dozens of newly declassified CIA documents (totaling nearly 900 pages), which provide more details about the agency’s post-9/11 torture program. For example, CIA medical personnel in the agency’s Office of Medical Services (OMS) provided specific guidelines on how to torture detainees, such as how to shackle them, confine them in “awkward boxes,” deprive them of food and sleep, and perform “rectal feeding.”

In addition, CIA medical personnel recently found that Gauntánamo detainee Abu Zubaydah, who was waterboarded 83 times, probably would have cooperated before he was tortured, stating that Zubaydah’s “cooperation did not correlate that well with his waterboard sessions.” In the declassified document, the OMS concluded that Abu Zubaydah “probably reached the point of cooperation even prior to the August [2002] institution of ‘enhanced’ measures – a development missed because of the narrow focus of questioning.” It added, “there was no evidence that the torture-produced, time-perishable information which otherwise would have been unobtainable.” Zubaydah was the first person to be detained in the CIA’s black site program. The US government initially believed he was a high-level al-Qaeda leader, which was untrue. His torture yielded little valuable information.

Newly declassified transcripts of Abu Zubaydah’s hearing at a Combatant Status Review Tribunal reveal how Zubaydah described the torture and abuse he suffered in CIA captivity. Zubaydah described being beaten, shackled (“They shackle me completely, even my head; I can’t do anything”), waterboarded (“Like this, and they put one cloth in my mouth and they put water, water, water”), deprived of food and sleep, and treated “like an animal.” He described serious wounds he suffered during the raid when US and Pakistani authorities captured him. During the raid, Zubaydah was shot in the thigh, stomach, and testicle. Later on, at some point in CIA custody, Zubaydah lost an eye. He told the tribunal, “After months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder, and my left thigh and my reproductive organs. They didn’t care that I almost died from these injuries. Doctors told me that I nearly died four times.”

When the CIA later realized Zubaydah was not even a member of al-Qaeda, they told him, “Sorry, we made a big mistake.”

As an intelligence-gathering tactic, torture has long proved to be ineffective, as tortured detainees will say anything their captors want to hear to make the torture stop. Many detainees who were tortured gave bogus information that misled intelligence officials. Rather than just a tactic to gather intelligence, the US government used torture as a form of exploitation, such as to recruit double agents or to elicit false confessions for propaganda purposes. For example, the US government used Ibn Shaykh al-Libi’s false claim — which he said under torture — that the Iraqi government provided chemical and biological weapons training to al-Qaeda, to justify invading Iraq. Al-Libi later recanted his statements, telling the FBI, “They were killing me. I had to tell them something.” He died in a Libyan prison in May 2009.

Moreover, torture is illegal under the US Constitution and international law, particularly the UN Convention Against Torture (to which the US is a signatory). Article 2 of the UN Convention states, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

However, despite the new revelations about the CIA torture program, along with the 2014 Senate report, public opinion about torture has changed very little. In fact, several polls show that most Americans are fine with the government torturing suspected terrorists. A March 2016 online poll conducted by Reuters/Ipsos found that nearly 25 percent of respondents said torture is “often” justified and 38 percent said it was “sometimes” justified, while only 15 percent said torture is never okay. Shortly after the Senate report on the CIA torture program was released, several polls, including from NBC/Wall Street Journal and Pew Research Center, found that a majority of Americans approved of the CIA torture techniques detailed in the report, while around a third disapproved of those techniques.

In addition, a CNN poll conducted after the Orlando massacre showed that 71 percent of respondents “say further acts of terrorism are very or somewhat likely in the United States over the next several weeks,” the highest percentage since the beginning of Iraq war.

Regardless of whether Clinton or Trump wins, whoever the next president is will have the infrastructure and broad legal powers to continue Guantánamo, indefinite detention, and perpetual war. For those concerned about the fights against torture, indefinite detention and the prison at Guantánamo Bay, the future looks bleaker now than it did when Obama became president in 2009.