The Forgotten Prisoners of Guantánamo

Campaigners from Witness Against Torture call for the closure of Guantánamo at a protest against torture, indefinite detention and the use of drones, outside the entrance to CIA headquarters, January 13, 2013. Photo by Andy Worthington, via Flickr.

By Andy Worthington, February 27, 2013

At "Close Guantánamo," we recently launched our appeal to President Obama for his second term in office, asking him to do three things in particular to honor his promise to close Guantánamo, made when he took office four years ago, which, of course, he failed to fulfill.

Those three requests -- relating to the 86 prisoners, out of 166 in total, who have been cleared for release but are still held -- were as follows:

1: Lift the ban on releasing any of the 56 cleared Yemenis from Guantánamo, imposed in January 2010.

2: Appoint a new person to deal specifically with closing Guantánamo, to find new homes for the cleared prisoners in need of assistance.

3: Take the fight to Congress to stop treating the cleared prisoners as pawns in a cynical game of political maneuvering, and to clear the way for all 86 cleared prisoners to be repatriated or safely rehoused in other countries.

These remain hugely important demands, essential if America is to recover any of its credibility as a nation founded on the rule of law, which it lost in the "war on terror" declared by the Bush administration.

In addition, however, we are profoundly concerned about the circumstances in which 46 other prisoners are held. In 2010, when the interagency Guantánamo Review Task Force, appointed by President Obama in 2009, delivered its final report, the officials and lawyers involved recommended that 48 of the prisoners at the time should be held indefinitely without charge or trial, on the basis that they were too dangerous to release, even though the officials conceded that there was insufficient evidence to put them on trial. Two of those men have since died, bringing the total to 46.

Not only did President Obama accept the recommendations, but in March 2011, he issued an executive order authorizing the indefinite detention of these men. The President tried to make it clear that this policy of indefinite detention applied solely to these 48 men, but it set a dangerous precedent, formalizing indefinite detention -- however supposedly limited in its scope -- as official Obama administration policy.

It also provided a solid basis for the legislation, initiated by lawmakers in 2011 -- and again in 2012 -- in the National Defense Authorization Act (NDAA), authorizing the mandatory military custody, without charge or trial, of anyone regarded as being a terror suspect connected to Al-Qaeda and/or the Taliban. Without the dangerous and unjust precedent established at Guantánamo, as I have repeatedly pointed out, there would have been no basis for the outrageous proposals for indefinite detention made by lawmakers last year and the year before.

Moreover, the very notion that there are people who are too dangerous to release, even though insufficient evidence exists to put them on trial, profoundly undermines the entire basis of detention in countries that call themselves civilized, in which the writ of habeas corpus (first introduced in England in 1215), guarantees that no one may be arbitrarily imprisoned -- that everyone, in other words, has the right to have the case against them heard in a court of law.

The only exception to the above is to hold people seized in wartime as prisoners of war, who can be held until the end of hostilities, but this is an option that was done away with by the Bush administration, and has not been reinstated by President Obama.

Back in March 2011, when President Obama issued his executive order authorizing the indefinite detention of 48 of the remaining Guantánamo prisoners, he attempted to placate critics by promising that there would be periodic reviews of the men's cases to establish whether or not it was appropriate for them still to be held. This was an insult, in that "periodic reviews" had been a hallmark of the Bush administration -- a process that the Supreme Court found "inadequate," which involved the use of classified evidence, and prohibited the prisoners from having lawyers.

Under President Bush, however, the review process at least led to the release of numerous prisoners, whereas it recently became apparent that the reviews promised by President Obama have not even materialized.

In December, the Wall Street Journal published an article by Julian E. Barnes and Evan Perez, entitled, "Obama Pressed Over Gitmo Reviews," which began by noting, "The Obama administration has failed to re-evaluate the threat posed by dozens of prisoners held in Guantánamo Bay, Cuba, putting it at increasing odds with political allies who are angry with the president's lack of action on the U.S. terrorism-detention system."

The mention of "political allies," it turned out, was a reference to the International Committee of the Red Cross, which, as the WSJ put it, "has authority under the Geneva Conventions to monitor the treatment of war prisoners to prevent mistreatment and torture," and which "has raised the issue of the missing reviews with senior U.S. officials at recent meetings in the U.S. and in Geneva. It also has acknowledged its concerns publicly, a rare rebuke from an agency that usually works under strict neutrality and in confidence."

As the Wall Street Journal described it, Pierre Kraehenbuehl, the director of operations for the ICRC, visited Washington in mid-December to meet with Pentagon officials "and raised the issue of the reviews, according to people briefed on the visit." The WSJ also noted that the ICRC had pressed the issue at recent meetings in Geneva with Daniel Fried, the special envoy for the closure of Guantánamo, who was recently relieved of his post, and transferred elsewhere, a situation that we wrote about two weeks ago, and that led to our call for the President to "appoint a new person to deal specifically with closing Guantánamo, to find new homes for the cleared prisoners in need of assistance."

The ICRC "declined to comment on its confidential communications with Pentagon and other officials, but it acknowledged it has raised the issue of the reviews since the beginning of the Obama administration," as the WSJ put it. Simon Schorno, a spokesman for the ICRC in Washington, confirmed that the ICRC "continues to raise this important issue as part of its confidential dialogue with U.S. authorities, including the Department of Defense."

U.S. officials told the Wall Street Journal that the periodic reviews "would likely begin early next year." Lt. Col. Todd Breasseale, a Pentagon spokesman, said, "We are on track to fulfilling the presidential executive order, and we anticipate initiating these hearings soon."

Outrageously, an unnamed senior official added, "The detainees likely to be held long-term without trial pose a significant risk, and the threat they pose isn't likely to have diminished since the initial review by the administration, meaning the delay in beginning the reviews hasn't been consequential."

That is particularly disgraceful, because it indicates an acceptance, within the administration, of information that is fundamentally unreliable.

On December 31, we urged the administration to consult with us regarding the 46 men officially subjected to indefinite detention, pointing out that they "are currently held indefinitely without charge or trial, on the basis that they are allegedly too dangerous to release, even though insufficient evidence exists to put them on trial," and adding, "We can confirm that what this means is that the so-called evidence is no such thing, and instead consists primarily of unreliable statements, mainly made by other prisoners in the 'war on terror,' not only at Guantánamo, but also in the CIA's 'black sites.'"

We added, "We are ready to meet with government officials to discuss the fundamentally unreliable basis of the so-called evidence against the majority of the prisoners at Guantánamo, and are making plans to publicize our findings as the year progresses."

That remains the case, and we hope for some positive feedback.

Below, we publish in its entirety an editorial from the Washington Post addressing this issue, which, we believe, needs urgent action, and an open mind on the part of those responsible for making crucial decisions about the men -- unlike the unnamed official cited above, who, like many others, is too readily swayed by information that is deeply and tragically tainted by the torture, coercion and abuse that was so central to the "war on terror":

Mr. Obama’s inertia on Guantánamo
Washington Post editorial, December 22, 2012

The Obama administration has been wrongly constrained by Congress from winding down the military prison at Guantánamo Bay, Cuba. But the rebuke it recently received from the International Committee of the Red Cross was entirely its own fault. Despite promising to set up a new system of reviews for foreign detainees still held at the facility, the administration had yet to hold a single proceeding. That means there is less due process at Guantánamo now than there was during the last years of the George W. Bush administration.

The previous administration, vilified for using Guantánamo to hold terrorism suspects captured abroad, eventually began holding annual reviews to determine if detainees still posed a threat. After conducting its own review of the prisoners, President Obama, who took office vowing to close Guantánamo within a year, signed an executive order in March 2011 establishing a new Periodic Review Board to review cases. There is a genuine need for such reviews: Of the 166 prisoners still at Guantánamo, somewhere between 40 and 60 will probably never be tried by a military commission. While some may never be judged as non-threatening, others are closer calls who deserve a thorough and impartial review.

Why has the board not begun work 21 months after Mr. Obama’s executive order? The main reason appears to be slow-rolling by the Pentagon bureaucracy. With some reason, officials have feared touching Guantánamo issues: Witness how Congress manhandled Eric H. Holder Jr.’s Justice Department after it proposed staging civilian trials for some detainees in New York -- or the departure from office of White House counsel Greg Craig after he pushed for quick action to move prisoners out of Guantánamo.

Pentagon officials now say that the review board will start work early next year. But that still leaves President Obama with a considerable Guantánamo hangover for his second term. Though it is necessary to hold some of the prisoners, 86 remain in the prison despite having been cleared for transfer to their home countries. Last week congressional conferees approved language in the annual defense authorization act that will continue a ban on moving prisoners to the United States during 2013 and maintain onerous restrictions on transfers to other nations.

If Mr. Obama is serious about closing Guantánamo, he will veto the bill, as the administration has threatened that he will do [Note: This did not happen]. But as we have previously said, closing Guantánamo would be a largely symbolic act; more important is providing justice, or at least due process, to the prisoners who remain. The administration could begin certifying some of them for transfer even under the strictures established by Congress; it could negotiate with governments such as Tunisia and Saudi Arabia about creating conditions for the return of other detainees. The biggest single problem is a group of 56 Yemenis cleared for return, but even in that difficult case the administration could begin working with Yemen on creating an appropriate detention facility.

Resolving Guantánamo’s problems is a matter of political will. So far Mr. Obama has failed to muster it.