The Midterm Elections, Guantánamo and Donald Trump’s Contempt for the Law

November 5, 2018

On the eve of the midterm elections, those of us who oppose the continued existence of the "war on terror" prison at Guantánamo Bay can only hope that the Republican majority in Congress takes a hit, to dent Donald Trump’s arrogant and insulting refusal to contemplate doing anything to move towards closing the prison in his first two years in office.

40 men are still held at the prison, and just one man, Ahmed al-Darbi, a Saudi, has been transferred out of the prison since January 2017 — and that was only because he agreed to a plea deal in a military commission trial under Barack Obama. This one exception aside, Donald Trump clearly has no interest in releasing anyone else under any circumstances, even though five of the 40 men still held were approved for release by high-level government review processes under Obama, and only nine men are facing trials in the prison’s almost entirely dysfunctional military commission trial system.

The 26 others have accurately been dubbed "forever prisoners" by the media, as they are unlikely to ever be put forward for trials, and are also unlikely ever to be approved for release, because the review process for doing so, the Periodic Review Boards established under Obama, has become meaningless under Trump, and, in any case, the office for negotiating transfers out of the prison has also been closed down by Trump, leaving no one able to arrange the release of prisoners, even if they were somehow to be approved for release.

Under Trump it has become abundantly clear that prisoners at Guantánamo can only be released at the whim of the president, a shameful situation for a country that claims to respect the law to find itself in, but one that echoes the original intent of its founder, George W. Bush, who set up a prison deliberately beyond the reach of U.S. law, where men could be held indefinitely without charge or trial, making a mockery of the law. To be deprived of one’s liberty in countries that claim to respect the law, you either have to be charged with a crime and put on trial, to be given a prison sentence if found guilty, or you can be held unmolested as a prisoner of war until the end of hostilities.

The men at Guantánamo were neither when the prison was set up, when, fundamentally, they had no rights whatsoever as human beings, and, fundamentally, they are in the same position today, nearly 17 long years later.

A blow to the Republicans’ power will not change this truly lamentable situation, as everyone seems to have forgotten about Guantánamo, and, in any case, the last time the Democrats were in power, for eight years under Barack Obama, they failed to close the prison, despite Obama promising to do so on his second day in office in January 2009.

Nevertheless, if Democrats take the House — and if, by some miracle, they take the Senate as well — there would be hope that, when it comes to Guantánamo, the immovable object that is Donald Trump could finally be moved, and something resembling progress towards the eventual closure of the prison might resume, because its continued existence is a shameful affront to any notion that the United States respects the rule of law.

Below we’re cross-posting an op-ed written by Eric Lewis, the chair of Reprieve U.S., the human rights organization that has been representing Guantánamo prisoners since the prison opened, which was written for the U.K.-based online newspaper, the Independent. We hope you have time to read it, as it sums up very well the misery of Guantánamo for the men still held, and the damage it does to America every day it remains open. Lewis also sheds some light on the Periodic Review Boards introduced by Obama, which led to 38 men being approved for release, and all but two freed before he left office, but which has been horribly corrupted under Trump, so that it is now broken and worthless.
- Andy Worthington

What good is America’s constitution if Guantánamo Bay still exists?
By Eric Lewis, the Independent, November 2, 2018

On a human level, it is a place of misery and despair. And on a larger level, it is a monument to the death of the rule of law.

The officer in charge of the Guantánamo detainees, Rear Admiral John Ring, told visiting journalists earlier this month, "Two of them had an opportunity to get on an airplane and chose not to go. So how bad could it be here?"

Perhaps in the age of Trump, we have become inured to such Orwellian doubletalk. But we should not accept that men could be approaching two decades in captivity without ever having been charged with anything. Nor should we accept the narrative of Guantánamo as a Potemkin prison, a luxury billet where detainees are treated so well, they are happy to remain.

How bad could it be at Guantánamo? Very bad, for the men and for the rule of law.

Amidst the three ring circus of Trump’s America, Guantánamo has been largely forgotten as both a human tragedy and a constitutional debacle. Forty men remain there. Nine have been charged and thirty-one have never been charged with any crime and never will be. Five of those thirty-one have been cleared for release, some for more than ten years. Three of these men had countries ready to take them; one was packed and fitted for clothing to travel. Then President Trump took office.

Admiral Ring’s cruel joke about men not wanting to leave pulls a veil of falsehood over what is going on at Guantánamo. President Trump acted quickly after his inauguration to abolish the office for repatriating Guantánamo detainees. Under President Obama, there was a special envoy who had the job of repatriating or finding third countries to accept detainees and guarantee their safety and the safety of others. One hundred and ninety-seven men were repatriated or relocated. In 2011, Obama established the Periodic Review Board of senior officials from six federal agencies who conducted hearings focused on the detainees’ plans for the future and tried to make determinations about the risk they presented in the future. The PRB was required to make a unanimous recommendation and those recommendations were forwarded to the agency principals for action. Thirty-eight of the 72 men reviewed under the PRB process during the Obama era resulted in clearance for release.

In the Trump administration, it is no one’s job to try to resettle the five cleared detainees. And the PRB meetings in the Trump era have resulted in not a single new detainee being cleared for release. The Trump administration has held twelve full reviews, nine of which have resulted in denials with the other three simply not decided due to being overdue. The focus of the PRB inquiries has changed from whether, after all these years, a detainee presents a future risk, to pressing for admissions that can be used against that detainee if that detainee later tries to challenge his detention in a court proceeding. If you admit wrongdoing, you are dangerous and you have admitted it; if you do not, you lack remorse and candour and should not be released. Heads, we win; tails you lose.

Not surprisingly, these thirty-one men, many of whom have been incarcerated since late 2001 or 2002 do not see any reason to cooperate. They are not getting cleared and they are not getting repatriated. Only bad things can happen in these proceedings. And approaching their eighteenth year without a charge, a hope of release, or any timetable for either, some of these men are, not surprisingly, suffering from severe mental illness. Some feel helpless; some simply refuse to cooperate; and some are unable to engage in any interaction. Some are on years-long hunger strikes to protest their captivity; they are force fed with enteric tubes roughly thrust through their nose into their throats and stomach, two or three times a day.

The $11m per prisoner that the U.S. spends on each detainee is not going into gourmet meals, or educational programs or luxury accommodation. It is spent on creating a maximum security environment. Prisoners are shackled hand and foot whenever they are moved. They are chained to the floor when they meet with their lawyers. The compound crawls with soldiers, surveillance equipment and armoured vehicles. There are multiple perimeters of razor wire, beyond which lies the shark-infested waters off Southern Cuba. To be sure, the government has just installed a padded cell in the medical complex and a new recreational facility for "super-compliant" prisoners where they can do art projects, although the Guantánamo authorities have changed the rules to prohibit any artwork from leaving the prison after the charitable organisation that I chair staged an exhibit of detainee art.

So how bad can it be? On a human level, it is a place of misery and despair. And on a larger level, it is a monument to the death of the rule of law. It is here that for the first time in our history, we have "forever prisoners": men who have been imprisoned without charge, often without even credible evidence, and possibly left to die there. It is here that being a foreign Muslim in the wrong place at the wrong time can result in a life sentence. Justice Kennedy, in finding that detainees at Guantánamo have the right to challenge their detention, wrote, "The laws and constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law." That decision was written more than ten years ago. The Supreme Court has not heard a Guantánamo case since. And forty men remain in legal darkness, perhaps forever. That is how bad it can be.