Will Guantánamo Ever Close? Fourteen Years After Prison’s Opening, Indefinite Detention Persists

It’s been 14 years since the prison at the US military base at Guantánamo Bay, Cuba, opened, and little has changed. The first 20 detainees were sent to Guantánamo on January 11, 2002. Since then, Guantánamo has held 779 detainees. Currently, there are 91 detainees remaining in Guantánamo and 34 cleared for release. While the Obama administration has increased the pace of releasing Guantánamo detainees, the policy of indefinite detention remains.

Pentagon officials have played a major role in thwarting detainee releases from Guantánamo. These releases are determined by Periodic Review Boards. Established by President Obama’s Executive Order 13567 on March 7, 2011, the boards are composed of representatives from different intelligence agencies that decide whether an individual detainee is safe to release or transfer, or if they should continue to be detained. After a detainee is cleared for release, the president’s administration searches for countries willing to take in released Guantánamo detainees or rehabilitate them. This is the point where the Pentagon has stepped in to stall releases.

According to a Reuters special report, “To slow prisoner transfers, Pentagon officials have refused to provide photographs, complete medical records and other basic documentation to foreign governments willing to take detainees.” In addition, “They have made it increasingly difficult for foreign delegations to visit Guantánamo, limited the time foreign officials can interview detainees and barred delegations from spending the night at Guantánamo.”

On CNN’s “Fareed Zakaria GPS,” US Defense Secretary Ashton Carter pushed back against the accusations, saying he wants to see Guantánamo closed, but “there are people in Gitmo who are so dangerous that we cannot transfer them to the custody of another government no matter how much we trust that government. I can’t assure the president that it would be safe to do that.”

In terms of the detainees who are being released, where are they going? The answer varies, particularly when it comes to Yemeni detainees: Current US law prohibits detainee transfers to Yemen because of the country’s security situation – made worse by Saudi Arabia’s air war, which is backed by the United States. The conflict has killed approximately 2,800 civilians and further destabilized the country. Congress has also forbidden transferring Guantánamo detainees to US soil.

In November 2015, the Pentagon released five Yemeni detainees from Guantánamo to the United Arab Emirates – Ali Ahmad Muhammad al-Rahizi, Khalid Abd Jal Jabbar Muhammad Juthman al-Qadasi, Adil Said al-Hajj Ubayd al-Busays, Sulayman Awad Bin Uqayl al-Nahdi and Fahmi Salem Said al-Asani. The United States released another two Yemeni Guantánamo detainees – Khalid Mohammed Salih al-Dhuby and Mahmoud Omar Mohammed Bin Atef – to Ghana on January 6. Two days later, the last Kuwaiti detainee, 38-year-old Faez Mohammed Ahmed al-Kandari, was released back home to Kuwait and transferred to a rehabilitation program. Al-Kandari had participated in the large Guantánamo prisoner hunger strike in 2013. Like many prisoners, he was force-fed, a tactic the US military used to crack down on the strike.

Three days after al-Kandari’s early 2016 release, the Pentagon released Muhammed Abd al-Rahman Awn al-Shamrani, a Saudi detainee, back home to Saudi Arabia. In mid-January, 10 Yemeni Guantánamo detainees were released to Oman – Fahed Abdullah Ahmad Ghazi, Samir Naji al-Hasan Muqbil, Adham Mohamed Ali Awad, Mukhtar Yahya Naji al-Warafi, Abu Bakr Ibn Muhammad al-Ahdal, Muhammad Salih Husayn al-Shaykh, Muhammad Said Salim Bin Salman, Said Muhammad Salih Hatim, Umar Said Salim al-Dini and Fahmi Abdallah Ahmad Ubadi al-Tulaqi. Another two were released in late January, while one detainee refused to leave. Egyptian detainee Tariq el-Sawah was released to Bosnia, while Yemeni detainee Abdul Aziz al-Swidi was sent to Montenegro.

The third detainee, Mohammed Ali Abdullah Bawazir of Yemen, refused to board the plane flying out of Guantánamo. Bawazir was afraid to leave because he has no family in the country to which he was supposed to be transferred, which has not been disclosed. He wanted to go to the United Arab Emirates, Saudi Arabia or Indonesia, where he has relatives.

In total, there were 16 detainee transfers in January.

Detainees’ Stories

Often left out in the discourse about Guantánamo are the stories of detainees as people. For example, consider Tawfiq al-Bihani: According to Pentagon records, al-Bihani was arrested by Iranian police in late 2001 or early 2002 “in a marketplace in Zahedan for being in the country illegally. Before that, al-Bihani lived with his sister in the Saudi city of Tabuk until May 2000. He tried to join the jihad in Chechnya, but never completed his travel there due to a friend’s death. While in Iranian custody, he was moved to various facilities in Mashhad and Tehran.”

In mid-March 2002, al-Bihani was transferred to Afghan custody. A CIA prisoner database, put together by The Rendition Project and The Bureau of Investigative Journalism, shows that al-Bihani was transferred to CIA custody some time between September 29, 2002, and October 28, 2002. According to the database and the Senate torture report’s calculations, al-Bihani spent nearly two months – between 50 and 59 days – in CIA detention. He was detained in the notorious, dungeon-like, CIA-run prison known as the “Salt Pit” or “Dark Prison” (code-named COBALT in the Senate report on the CIA torture program). There, he was deprived of sleep for 72 hours before an interrogation session – a form of torture that was not authorized by CIA headquarters.

According to al-Bihani’s account, the Salt Pit “was absolutely the worst prison. It was a very dark prison and there was no light, no bed or a carpet, the floor was semi cement. The restraints on my feet were very tight; they put me into a cell and kept me hanging tied to the wall for almost ten days.” He was also subjected to continual loud music, cold temperatures and starvation.

At some point between November 18, 2002, and December 26, 2002, al-Bihani was transferred out of CIA custody and into US military custody, according to The Rendition Project and The Bureau of Investigative Journalism. He was initially detained at Bagram Air Base in Afghanistan, where he was also mistreated. On February 6, 2003, al-Bihani was sent to Guantánamo, where he is still detained.

Why was al-Bihani tortured and detained? The answer is murky, since he did not meet the standard requirements for continued CIA detention. According to The Rendition Project, “Indeed, he was never suspected of having information on, or a role in, terrorist plotting, but was interrogated simply because he was believed to have been present at a suspected [al-Qaeda] guesthouse.”

Recently, Fawzi al-Odah, a former Guantánamo prisoner from Kuwait, talked about his capture and captivity in an interview with the Kuwait Times. In August 2001, al-Odah, a primary school teacher, left Kuwait to go to Afghanistan to teach the Qur’an and do charity work. His father is a retired air force pilot who fought with the United States during the 1991 Gulf War. According to an account he gave at a Guantánamo military tribunal, al-Odah established contact with the Taliban, which he said “was necessary because that was the government in Afghanistan at that time.” Al-Odah’s education and charity were cut short after 9/11 when the US war in Afghanistan started.

A Taliban representative told him that Kandahar was too dangerous because it was the Taliban capital. At the time, US military forces bombed Kandahar and quickly ousted the Taliban from the city. The representative advised that al-Odah stay at a family’s house at Logar in eastern Afghanistan. There, he left his passport and belongings because having an Arab passport and money would’ve gotten him killed. After that, he moved near Jalalabad, close to the Afghanistan-Pakistan border, to stay with another family where he was given an AK-47 (Kalashnikov) assault rifle for protection.

Al-Odah was supposed to stay at the family’s house until the situation calmed down. However, the war and situation worsened so al-Odah went to Pakistani security forces and “told them I was a Kuwaiti and worked for charity, and I wanted to be taken to the Kuwaiti embassy,” he said in the Kuwait Times interview. However, he was arrested by Pakistani police, who then turned him over to the US government for detention and interrogation. He explained in the interview, “I was surprised by Pakistani police taking me to a military prison, then a month later, the Americans came in and interrogated me in the Pakistani prison before taking me to an American base in Kandahar, Afghanistan, where I remained for two months before being sent to Guantánamo.” Al-Odah was detained at a US base in Kandahar before being sent to Guantánamo in February 2002.

A 2006 Seton Hall study revealed that only 5 percent of Guantánamo detainees were captured by US forces, while 86 percent were arrested by Pakistani security forces or tribal allies and turned over to the US government for a bounty. At the time, the US government offered Pakistan and other neighboring governments a $5,000 bounty for any person suspected of terrorism or al-Qaeda ties. Al-Odah was one of those people.

For the first few years, he and other detainees were kept in solitary confinement. After 2010, he said, “We were moved into group prisons.” Al-Odah said that he was mistreated and beaten by US authorities: “Treatment was very bad, just because I was an Arab in that place at that time. I was treated like an enemy, I was beaten badly and exposed to various types of physical and psychological harm.” The psychological harm included “insulting sacred and religious things. Insulting me verbally, and I was made to believe that I would be freed several times, then got punished for no reason.”

He went on several hunger strikes, the first occurring at Camp X-Ray in 2002, then a second one in 2005, during which he was force-fed for five months and lost 110 pounds. He went on two more hunger strikes in 2010 and 2013. Al-Odah said force-feeding “was a painful process as a pipe is inserted from the nose into the stomach.” To keep himself occupied during his detention, al-Odah said he read the Qur’an. When asked by the Kuwait Times what the major difference was in his detention conditions under President George W. Bush and President Obama, al-Odah responded, “There was no major change, other than having groups in cells.”

The US government accused al-Odah of “firing a Kalashnikov rifle at some targets” at a small camp, staying in a house with three Arabs carrying AK-47s who may have been fighters and leaving Afghanistan with a group of men “who may have had some al-Qaeda or Taliban members.” However, it was never clearly established that al-Odah fired at US forces.

Fawzi al-Odah was a lead plaintiff in a court case, filed by the Center for Constitutional Rights, seeking the right of habeas corpus for 12 Kuwaiti detainees in Guantánamo, including himself. That case – Al Odah v. United States – was consolidated with Boumediene v. Bush, which also sought a writ of habeas corpus for Lakhdar Boumediene, a Bosnian national detained in Guantánamo who was later released in May 2009. Boumediene v. Bush went to the US Supreme Court. On June 12, 2008, the Supreme Court, in a 5-4 decision, ruled that the Guantánamo prisoners had a right to habeas corpus under the US Constitution. And so, while al-Odah’s habeas petition and appeals to federal courts were rejected numerous times, finally, in July 2014, al-Odah was cleared for release by the US government. Al-Odah was released from Guantánamo in early November 2014 and sent home to Kuwait.

In January 2016, a group of protesters marked the 14-year anniversary of Guantánamo’s opening by holding a vigil outside the US Embassy in London. Shaker Aamer, the last British resident detained at Guantánamo, spoke at the vigil, along with four other former detainees. He was released in November 2015. As an English speaker, Aamer became well-known for communicating the abuses at Guantánamo to the Western world and organizing prisoner hunger strikes. This made him a threat in the eyes of the US military, which was reluctant to release him. Aamer went to Afghanistan with his family in 2001 to work at an Islamic charity. Shortly after the United States invaded Afghanistan, the Northern Alliance captured him and handed him to the United States for a ransom. He was detained and interrogated at Bagram and on February 14, 2002, he was sent to Guantánamo.

The US military accused Aamer of being a “recruiter, financier, and facilitator” for al-Qaeda. However, many of those accusations were based on testimony from Yasim Mohammed Basardah, a Yemeni detainee at Guantánamo who became an informant for the US military. The US military praised Basardah for his cooperation and used his statements against 123 other prisoners. However, detainee lawyers and even some intelligence officials point out that Basardah’s claims are extremely unreliable. Buried inside Yahya Samil al-Suwaymil al-Sulami’s prisoner file is an analyst’s note that says, “In every interview where [Basardah] was questioned on detainee, [Basardah] has changed his story. Detainee’s identity as a bodyguard has not been substantiated through other known sources.” Al-Sulami was accused of being one of Osama bin Laden’s bodyguards but, as investigative journalist Andy Worthington points out, the fact that this claim came from Basardah’s testimony makes it questionable. Al-Sulami was released to Saudi Arabia in 2007.

In fact, Basardah told US authorities about a London-based al-Qaeda cell that doesn’t exist. He said he learned of the nonexistent cell during conversations with Shaker Aamer. The US government created an entire intelligence file on that nonexistent al-Qaeda cell. In 2007, Aamer was cleared for transfer by the Bush administration, which admitted it had no evidence against Aamer.

Of course, at this point, Aamer had already spent over five harrowing years in prison. During his time in Guantánamo, Aamer was tortured with sleep deprivation, beatings, hog-tying, shackling, loud music and cold temperatures. As a result of his torture and time in captivity, Aamer “suffers serious arthritis and kidney problems,” VICE reports. In an interview with the BBC, Aamer said that while at Guantanamo, he befriended ants and cats to keep himself occupied.

Since his release, Aamer has been sharing his story, condemning extremism and speaking out against the continued injustices and abuses at Guantánamo.

Indefinite Detention

At the end of November 2015, President Obama signed a $607 billion defense policy bill – the 2016 National Defense Authorization Act – despite his opposition to the bill’s restrictions on transferring detainees from the detention facility at Guantánamo Bay, Cuba, to US soil. In a statement, Obama said he was “deeply disappointed that the Congress has again failed to take productive action toward closing the detention facility at Guantánamo.” He added, “Maintaining this site, year after year, is not consistent with our interests as a Nation and undermines our standing in the world. As I have said before, the continued operation of this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists.” Obama condemned the restrictions, saying they were “unwarranted and counterproductive” and “extend” the prison’s operation.

However, even President Obama’s plan to close Guantánamo would not be a radical shift in policy. Even if the Obama administration releases all of the men cleared for release, there is still the question of indefinite detention as a matter of policy. A few months after he entered office, President Obama endorsed the policy of indefinite detention without trial for some Guantánamo detainees, namely those deemed too difficult to prosecute – thanks to the lack of admissible evidence, much produced through torture – or too dangerous to release. Nearly four dozen detainees will likely be held in Guantánamo indefinitely without trial. Indefinite detention violates international law. Obama’s original plan was to put Guantánamo detainees – the indefinite detainees – in Thomson Correctional Center in Illinois. However, Congress forbade transfers from Guantánamo to US soil, which put the plan on hold.

Obama’s Guantánamo plan has not changed. As evidenced by the president’s recently released Guantánamo closure plan, his administration still maintains indefinite detention and perpetual war powers, which, along with torture, are what make Guantánamo odious in the first place. The Obama administration bases its indefinite detention powers on the 2001 Authorization for Use of Military Force (AUMF), which authorizes the president to use military force against organizations, nations and individuals responsible for the 9/11 terrorist attacks. Since the Obama years, the AUMF has been expanded to justify covert operations against offshoots of al-Qaeda and other Islamic fundamentalist groups. This makes the indefinite detainees prisoners of war in an endless war.

Essentially, Obama’s Guantánamo closure plan simply moves indefinite detention to US soil. The final plan does not name specific alternative sites. However, the US government has considered a number of alternative detention sites to the US naval base at Guantánamo Bay: Northwest Regional Correctional Facility in Tacoma, Washington; Naval Consolidated Brig Miramar in Miramar, California; Kansas’ Fort Leavenworth military prison; the supermax prison ADX Florence near Florence, Colorado; Illinois’ Thomson Correctional Center and naval brigs in Chesapeake, Virginia, and Charleston, South Carolina.

Defense Secretary Ashton Carter said in June 2015 that “there are people in Guantánamo Bay who cannot and should not be released because they will return to the terrorist fight” and that there needs to be a place to “detain them in the long term.” However, fears of Guantánamo detainees “returning” to terrorism after release are overblown. Various estimates put recidivism rates for Guantánamo detainees at anywhere between 2.4 percent and 17.9 percent, which is much lower than recidivism rates for people in US prisons, who are rearrested at a rate of nearly 70 percent.

Yet none of these facts are dissuading the US government from relinquishing indefinite detention powers. According to The Associated Press, “through a combination of measures,” Obama administration officials believe “they could reduce the number of prisoners currently held at Guantánamo to an ‘irreducible number,’ that could be small enough to make their presence in the United States acceptable to Congress.” An Obama administration official told The Associated Press, “We are looking at ultimately two dozen people who we would be looking at holding in the United States. It’s a lot better than 90.”

Simply moving Guantánamo would not mean ending the policies it represents – indefinite detention, military commissions and perpetual war. Once Obama released his plan to close Guantánamo, the Center for Constitutional Rights criticized it, saying: “This is not a plan to close Guantánamo…. the centerpiece of the plan – moving those detainees who have not been and will never be charged with any crime to a prison in the U.S. – does not ‘close Guantánamo,’ it merely relocates it to a new ZIP code. The infamy of Guantánamo has never been just its location, but rather its immoral and illegal regime of indefinite detention. Closing Guantánamo in any meaningful sense means putting an end to that practice.”

Elizabeth Beavers, the security with human rights and activism coordinator at Amnesty International, told Truthout, “Closing Guantánamo means more than just changing its ZIP code. It’s not enough to move indefinite detention and move the unfair military commissions into a new location. That’s not closing Guantánamo; that’s just moving it.” Beavers did add that closing the detention facility is still important: It would reject the Bush-era approach of holding detainees incommunicado with no access to the legal system. The solution, according to Beavers, is to try Guantánamo detainees in a federal court – or simply release them, if there is not enough evidence for prosecution.

As for the “too dangerous to release” argument for maintaining Guantánamo, Beavers said, “There’s no such thing as ‘too dangerous to release.’ That doesn’t exist. That’s not how detention works. You don’t get to lock someone up until they die because they might do something bad someday. You can detain someone if you’ve got charges to bring against them and you’re going to put them through a fair trial but that’s it.” Beavers warned that if the Obama administration does not end the practice of indefinite detention now, then the policy will be handed off to and maintained by the next president.

That fear is not far-fetched. In the current presidential election, Republican candidates have been competing over who will be the biggest torturer and most chest-thumping, belligerent warmonger. Sen. Marco Rubio promised to send ISIS fighters to Guantánamo. Donald Trump said he’d bring back waterboarding and “a hell of a lot worse than waterboarding,” and kill ISIS family members. Trump criticized Sen. Ted Cruz for not sufficiently supporting the use of torture.

Senate Majority Leader Mitch McConnell promised to fight President Obama’s plan to close Guantánamo. He told the Guardian, “Guantánamo ought to stay open. It’s the perfect place for terrorists. The president likes to kill terrorists – and I think that’s great, I’m all for killing terrorists – but even more important is to capture terrorists and interrogate them and try to find out what they know. The president doesn’t seem to be very interested in interrogation.” McConnell went even further, arguing that Guantánamo is useful for capturing and detaining more “terrorists”: “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 … I’m a big fan of using Gitmo the way it has been used and I think hopefully he will fail in his effort to completely remove all of these bad guys from Guantánamo.”

Obama’s plan to close Guantánamo wouldn’t actually close it – it would move it. His plan would transfer the policies of indefinite detention and unfair military commissions to US soil. While Republicans castigate him for being weak on defense and obstruct his plans to close the detention facility, a bipartisan consensus on indefinite detention and perpetual war remains. The sad reality is that both major political parties endorse or meekly accept indefinite detention and perpetual war.