Gitmo 12 Years Later

It’s been 12 years since the prison at Guantanamo opened, and its future continues to ebb and flow. Congress eased restrictions on transferring Guantanamo detainees and more prisoners have been released. Despite these changes, the fundamental issues of indefinite detention and perpetual war persist.

Hunger Strike Blackout

The US military instituted a media blackout on the hunger strike last month, stating that it would stop disclosing the number of prisoners on strike. In September, the military announced it would cease providing daily counts to reporters since the six-month strike died down but would be willing to “respond to queries on hunger strikes individually,” as prison spokesman Lt. Col. Samuel House told The New York Times. The latest policy goes farther by refusing to provide any numbers whatsoever about the strike, even if asked by the press. This is because the military no longer wants negative attention drawn to Guantanamo, the motto of which is “Safe, Humane, Legal, Transparent.”

More Prisoners Released

As of this writing, 155 men remain in Guantanamo, most of whom are not charged with anything: 77 are cleared for release, six are being tried in military commissions, two are serving sentences after being convicted in the commissions and nearly three dozen might be tried. However, Guantanamo chief prosecutor Brig. Gen. Mark Martins told reporters in June 2013 that only 20 could be “realistically prosecuted.” Around four dozen prisoners are designated for indefinite detention without charge or trial – a practice that violates international law – until the War on Terror ends. The indefinite prisoners are deemed too dangerous to release but too difficult to prosecute because much of the evidence against them is inadmissible, having been produced through torture.

In recent weeks, the United States released more prisoners from Guantanamo. Around half a dozen were repatriated to Algeria, Saudi Arabia and Sudan. The Saudi and Sudanese repatriations were comparatively smooth. That was not the case for the Algerian repatriations.

Two Algerians, Belkacem Bensayah and Djamel Ameziane, were sent back to Algeria against their will in early December 2013. They feared persecution upon return to Algeria, a country with a bleak human rights record. Both men fled Algeria during the country’s civil war in the 1990s. According to a Reuters report, Bensayah, now 51 years old, “was a grocer who moved to Bosnia in the mid-1990s and married a Bosnian woman. The US military accused him of being a financier and facilitator for Muslim extremists headed to Afghanistan.” He “was one of six Algerians investigated by the Bosnian government on suspicion of plotting with al-Qaeda to attack the US embassy in Sarajevo in 2001.” After Bosnian police exonerated them, the six men, including Bensayah, “were turned over to US authorities and sent to Guantanamo. The other five were released from Guantanamo several years ago.”

The US military alleged that now 46-year-old Ameziane “was part of an al Qaeda-affiliated force that fought against US-led troops in late 2001, then fled into Pakistan. The group surrendered to Pakistani authorities, who turned them over to the United States.” according to Reuters.

However, a Center for Constitutional Rights (CCR) document profiling Guantanamo detainees tells a different story. After fleeing Algeria, Ameziane initially went to Austria, working as a chef in an Italian restaurant, then lived for five years in Canada, where he sought, but was later denied, political asylum. Left with few options, Ameziane “traveled to Afghanistan because it was the only country he could think of where, as a Muslim man, he might live peacefully and without constant fear of being returned to Algeria,” the CCR document says. He fled Afghanistan after the US invasion, but “was captured by a local Pakistani tribe” that “turned him over to Pakistani authorities,” who then sold him to the US military for a bounty.

At the time, the US military offered lavish bounties for any suspected militant captured in Afghanistan or Pakistan – $2,000 for those captured in Afghanistan, $5,000 for ones in Pakistan, according to CCR. This led to many tribes and local authorities snatching and handing over random people to the US for monetary gain. In fact, according to a Seton Hall study, “Only 5% of the [Guantanamo] detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody.”

CCR, which represents Ameziane, condemned the forced repatriation in a press release. CCR Executive Director Vince Warren stated that the organization demands “that the Algerian Government immediately release Djamel Ameziane from secret detention, treat him humanely, and respect his human rights. We further call on the international community to demand transparency and accountability from the Algerian Government and to ensure that Mr. Ameziane does not suffer persecution now or in the future.” The CCR also pointed out that Ameziane “fears persecution by the Algerian security services based on several factors, including his minority, Berber ethnicity.” Bensayah’s lawyer, Rob Kirsch, “also urged the State Department to resettle him in another country out of fear he could face further imprisonment,” according to The Associated Press.

Almost two weeks after the Algerians were repatriated forcibly, two detainees were sent back to Saudi Arabia. Saad Muhammad Husayn al-Qahtani, now 35 years old, and Hamoud Abdullah Hamoud, now age 48, both Saudis, had been held in Guantanamo since 2002. According to Reuters, “US military documents say [al-Qahtani] was an al Qaeda member who volunteered to become a suicide bomber.”

But al-Qahtani was never a threat to the United States. In the CCR document, his lawyer, Patricia A. Bronte, explains that al-Qahtani “has never engaged in hostilities or combat operations, never fired a weapon at anyone, and never had any intention of taking up arms against the United States or its allies.” He only fought “when he intervened to stop Taliban soldiers from beating an Afghan truck driver.” Before 9/11, al-Qahtani traveled to Afghanistan because “he was curious about the Taliban government (recognized by his home country as legitimate), and because he wanted to help the Afghan people, who had endured decades of war.” After the US invasion, al-Qahtani fled Afghanistan for Pakistan and “went to the first police station he could find, and asked for help in returning home.” However, Pakistani authorities turned him over to US forces for a bounty.

Bronte added that al-Qahtani has “suffered from depression and insomnia for several years.” She describes him as “bright, engaging, and speaks at least six languages fluently.” While imprisoned in Guantanamo, al-Qahtani “taught himself to speak, read, and write English.” He spent about one-third of his life in Guantanamo.

As for Hamoud, Reuters reported that the US military alleged “he was an al Qaeda courier who fought on the front lines against US-led forces near Bagram and fled to Pakistan.” Pakistani authorities captured Hamoud in February 2002 during “a raid on a suspected al Qaeda safe house.”

However, Hamoud’s testimony paints a different picture. Investigative journalist Andy Worthington pointed out that Hamoud wanted to fight for jihad in Afghanistan so his wife would bear him a child. Once he got to Afghanistan, he realized the “picture about the fight in my head,” which he thought would be Muslims against Communists, was incorrect. He then did “humanitarian work with an Arab who explained that ‘not everybody comes to Afghanistan for fighting,'” Worthington wrote. Once the US invaded Afghanistan, Hamoud fled to Pakistan and stayed in the “house of a Pakistani whose phone number he had been given in Afghanistan, where he was arrested.” “I did not plan to go to that particular house,” Hamoud said. “I had only the telephone number, and I did not know if it belonged to a house or something else, a shop, for example.”

The following week, two Sudanese detainees returned to Sudan. Upon arriving in Khartoum, one of the released detainees, Ibrahim Idris, said he was “systematically tortured” by Guantanamo jailers and punishment was “doubled” for hunger strikers. According to The Associated Press, Idris said, “We have been subjected to meticulous, daily torture,” while hunger strikers were “double tortured … on an isolated island, surrounded by weapons.”

Idris, who is obese and diabetic, suffers from schizophrenia and “has mostly lived at Guantánamo’s psychiatric ward since he got to the US terror prison in Cuba on the day it opened,” according to the Miami Herald. US military intelligence said Idris was “a veteran member of al-Qaida” in his detainee assessment brief – a classified Guantanamo document that was released by WikiLeaks in 2011. It also alleged that Idris “coached other JTF-GTMO detainees to use resistance techniques while in US custody.” But as Miami Herald reporter Carol Rosenberg explained, “even his fellow prisoners don’t want him around … because he behaves bizarrely – wears his underwear on his head, whispers to himself, is delusional.” His lawyer, Jennifer Cowan, said in a petition to the US District Court in Washington, DC, that Idris’ “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.”

All these five men were cleared for release in 2009 and never charged with a crime.

However, the other Sudanese detainee, Noor Uthman Muhammed, was among the few in Guantanamo to be prosecuted and convicted in a military commission. In early 2011, he was convicted of providing material support to al-Qaeda and conspiracy to provide material support for a terrorist organization, for which he was sentenced to 14 years in prison. But he made a plea deal that reduced his confinement to 34 months. Noor served the remainder of his time in Guantanamo before being released. However, there is more to Noor’s story.

In August 2011, Esquire dug into Noor’s history and his path to Guantanamo in a lengthy investigative report. Noor grew up poor in Sudan but was never very religious. In 1992, some men told him about Islam, sharing stories of the brave mujahideen who fought to protect Muslims and how Noor could also be a hero by waging defensive jihad. Searching for a “larger purpose” and “a way out of the bleakness of his life,” Noor went to Afghanistan in 1994. He wound up in Khalden, a training camp built by Arab mujahideen to fight the Soviet Union. After the Soviets left Afghanistan, the camp stayed. Many men, including Yemenis and Chechens, came to train there, but it was independent from al-Qaeda and the Taliban. The camp was headed by Abu Zubaydah, whom the US long believed was a top al-Qaeda leader. But Zubaydah’s main responsibility at the camp was to get paperwork for the men to help them graduate to more training or go home.

More than six years passed. By then, Osama bin Laden had moved much of his operations to Afghanistan. He did not like the idea of independent camps like Khalden, according to Esquire. Because of this disagreement, Khalden closed. Noor was left wandering without a passport.

On March 28, 2002, Pakistani commandos, with the FBI and CIA at their side, raided a safe house in Pakistan searching for Abu Zubaydah. Noor was in the same house that night. The commandos killed one person and wounded Zubaydah. The Pakistani commandos, CIA and FBI rounded up Zubaydah, along with Noor and the other men in the house. Abu Zubaydah’s capture was deemed a significant achievement in the War on Terror. However, after torturing Zubaydah – including subjecting him to waterboarding 83 times – in secret CIA prisons, the US government realized it overestimated his role in al-Qaeda, as media reports revealed in 2009. He was not even a member of al-Qaeda, and the US government’s torture methods produced little valuable information. Since 2006, 42-year-old Saudi-born Palestinian Abu Zubaydah has been detained in Guantanamo without charge. He was in Guantanamo briefly from September 2003 to March 2004 until the CIA removed Zubaydah so he could not get access to a lawyer.

Because he trained at Khalden, the US government sought to implicate Noor in “cultivating terrorists,” including people like Mohamed al-Owhali, “who helped blow up the US embassy in Nairobi,” according to Esquire. However, as Esquire pointed out, “Noor did not know what would become of these men, but he did cook rice for them.” His defense lawyers argued he should not be held responsible for the crimes of those men. His fingerprints were not in bomb-making room in the safe house’s second floor. But these facts did not matter in the military commission. Noor pled guilty to the charges, but that was largely because he did not care about the bizarre process and politics of the military commission. He felt his fate was already sealed and no amount of protestation would change it. Noor just wanted to finish the trial and go home. The sentence, at least, gave him an endpoint he could be wait for rather than languish indefinitely in Guantanamo. After more than a decade imprisoned in America’s most notorious penal colony, Noor is finally home.

Last Uighurs Leave Guantanamo

One notable recent development was the release of the last Uighur detainees from Guantanamo on New Year’s Eve of 2013. Uighurs are an ethnic Turkic minority living in China’s Xinjiang province, an autonomous region located in the country’s far northwestern corner. They speak a Turkic language, are Muslim, and generally feel culturally aligned with nearby Central Asian nations rather than with China, which is dominated by ethnically Han people. Xinjiang borders several countries: Russia, Mongolia, Kazakhstan, Kyrgyzstan, Tajikistan, Afghanistan, Pakistan and India. It is also rich in oil and natural gas.

Many Uighurs have fled China to countries like Afghanistan to escape oppression, as China has brutally cracked down on Uighur protests. But after the US-led invasion of Afghanistan, dozens of Uighurs were rounded up as suspected militants by America’s Afghan tribal allies and sent to Guantanamo. The US harshly interrogated the Uighur prisoners, subjecting them to practices like sleep deprivation, cold temperatures and isolation. They were also suspected of terrorism on the flimsiest of evidence, such as how they exercised and ignoring guards’ instructions. However, because the Uighurs’ grudges were primarily against China and not the United States, they never posed a substantial threat – a conclusion the US came to early on. Within Bush’s first term, two Pentagon reviews, one in late 2003 and the other in March 2005, determined that 15 of the 22 Uighurs were not “enemy combatants.” In 2008, a federal judge ruled the Uighurs’ detention unlawful and, since 2006, the US has worked to release them. Complicating matters was the likelihood of the Uighurs being persecuted if they returned to China. The first five were sent to Albania in 2006. Bermuda, Palau, Switzerland, and El Salvador also took in Uighurs released from Guantanamo.

Yusef Abbas, 38, Hajiakbar Abdulghuper, 39, and Saidullah Khalik, 36, were the last three Uighurs, out of 22 in total, to leave Guantanamo. They were repatriated to Slovakia. The Chinese government condemned their release, saying the Uighurs were “terrorists” and a security threat, although none of the released Uighurs has been involved in terrorist activity.

Military Commissions Continue

Last December saw another military commission pretrial hearing for the five alleged 9/11 plotters. Pretrial hearings were cut short as the prosecution filed a motion to have one defendant, Ramzi bin al-Shibh, evaluated for mental fitness.

Perhaps the biggest development in last month’s hearing was Judge James Pohl’s ruling that defendants’ “thoughts and experiences” of CIA detention were no longer classified, thus allowing them to speak in court about how they were treated in CIA black sites. But this is one step only. J. Connell, defense lawyer for Ammar al-Baluchi, told Truthout that this removal “is a necessary but not a sufficient condition for the defendants to express themselves about their torture.” He added, “The next step is to demonstrate that no other agency has authority to classify the defendants’ thoughts and experiences either.”

Meanwhile, many details of the CIA rendition program remain classified. Under the military commission’s protective order, defense attorneys remain forbidden from disclosing those details relevant to their case to the press and independent organizations. This hinders efforts at redress for torture.

The judge also ruled that the defendants have no rights under Convention Against Torture in the military commission. In the ruling, the judge reasoned that because the US Senate’s ratification of the Convention Against Torture, through specific reservations and understandings, declared numerous articles to be “non-self-executing,” the treaty conferred “no rights” to each defendant.

Yet, the prohibition against torture is protected by international law, particularly customary international law, which binds all states and permits no derogation, making it a basic right that can never be suspended. Connell said the commission was “completely wrong” in its ruling, arguing that “the prohibition against torture, including the right to explain that one has been tortured, is fundamental to international law. The military commissions, which are based in part on international law, are bound to respect those rights.”

Walter Ruiz, defense attorney for Mustafa al-Hawsawi, concurred: “It is a sad state of affairs that our country has not given teeth to all the presidential rhetoric and all the diplomatic statements about affirming the prohibition against torture and working internationally to eradicate torture. We should start by cleaning our own backyard in a meaningful way.” The ruling, according to Ruiz, “reveals the painful truth (that) we do not mean what we say. We simply say what we want when it is politically convenient to do so.”

NDAA 2014, Indefinite Detention and Perpetual War

Despite recent positive developments at Guantanamo, fundamental problems remain. The main argument for maintaining the prison and preventing its closure is the fear that detainees will commit acts of terrorism once they are released. However, that does not square with the facts. The recidivism rate of Guantanamo detainees – those confirmed to have engaged in “militant activities against either U.S. or non-U.S. targets” like attacking US forces or helping al-Qaeda after release – is around 4 percent, according to the New America Foundation.

The Obama administration has entrenched the practice of indefinite detention by not only designating four dozen Guantanamo prisoners for that fate but also legalizing and relocating the practice. The 2014 National Defense Authorization Act (NDAA) still contains sections of the 2012 NDAA that allow the US military to indefinitely detain American citizens suspected of terrorist ties on US soil. Plus, the Obama administration is discussing with the Yemeni government plans to build a detention facility outside its capital, Sana’a, to house Yemeni Guantanamo detainees, who constitute a substantial portion of the prison’s population. Thus, the Obama administration plan to close Guantanamo effectively amounts to transferring the American practice of indefinite detention elsewhere.

The War on Terror – the justification for indefinite detention – still thrives, expanding to new theaters such as Pakistan, Yemen, Somalia and parts of Africa. Perhaps indefinite detention cannot be eliminated until the War on Terror, that ill-defined perpetual battle in which potential enemies are endless and human rights are an abandoned ideal, is brought to a close.