By Andy Worthington, October 12, 2013
Progress towards closing the prison at Guantánamo Bay -- or even getting men freed who have been cleared for release by a government task force -- has become such a slow and difficult process that any positive developments must be greeted with a sense of relief that at least something is being done.
In the last week, three developments that offer some hope have taken place -- the appointment of a "Special Envoy for Guantánamo closure" in the Pentagon; the decision by the Justice Department not to contest the habeas corpus petition of a severally mentally ill prisoner; and the start of a review process for the majority of the 80 prisoners still held at Guantánamo who are not amongst the 84 prisoners who were cleared for release by President Obama's inter-agency Guantánamo Review Task Force in January 2010.
The fact that 84 prisoners who were cleared for release nearly four years ago are still held shows the extent to which progress towards closing Guantánamo has almost ground to a halt.
The 84 men are still held in part because Congress has raised obstacles to the release of prisoners, prohibiting them from being moved to the U.S. mainland for any reason (even to face trials), requiring the administration to certify that any prisoners it intends to release will be unable to engage in terrorist activities against the U.S., and prohibiting the release of prisoners to any country where there has been even a single reported incident of recidivism -- of prisoners allegedly "returning to the battlefield" -- according to reports issued over the last four years by the Pentagon and the Director of National Intelligence, which, to be frank, are extremely unreliable.
However, President Obama also bears responsibility, in particular for failing to use a waiver provision in the legislation imposed by Congress to release prisoners if he and the Secretary of Defense regard it as being in America's national interests -- as it clearly is. To quote the president himself, in remarks he made at a press conference in April, “I think it is critical for us to understand that Guantánamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counter-terrorism efforts. It is a recruitment tool for extremists. It needs to be closed.”
In May, in a major speech on national security issues, provoked by the prison-wide hunger strike that the prisoners had embarked upon to raise awareness of their plight, President Obama described Guantánamo as "a facility that should have never have been opened," and also pointed out that the prison "has become a symbol around the world for an America that flouts the rule of law." He also stated that he would appoint two senior envoys at the State Department and Defense Department "whose sole responsibility will be to achieve the transfer of detainees to third countries."
These are fine words, but until last week all that had been achieved in the last four months was the appointment of one envoy, Clifford Sloan at the State Department, and the release of just two cleared prisoners.
Last week, one promising new development was defense secretary Chuck Hagel's announcement of the appointment of Paul M. Lewis, who has served as General Counsel for the House Armed Services Committee, and the director of the Office of Legislative Counsel in the Office of the General Counsel of the Department of Defense, as the "Special Envoy for Guantánamo closure" in the Pentagon. As a press release explained, "This announcement reflects the Department's commitment to implementing the President's directive to close the detention facility at Guantánamo Bay."
The press release added, "Special Envoy Lewis brings a wealth of experience from his previous position as the Minority General Counsel of the House Armed Services Committee where he oversaw Guantánamo related issues." It was also noted that Lewis "will oversee efforts to transfer third country nationals currently held by the United States in Afghanistan" -- at Bagram, where the U.S. is still holding around 67 foreign nationals, despite having handed over the majority of its prisoners to Afghan control in March this year.
Justice Department decides not to contest release of mentally ill prisoner
In the second development, lawyers at the Justice Department refused to contest the habeas corpus petition of Ibrahim Idris, a Sudanese prisoner who is severely mentally ill, and has been throughout the nearly 12 years of his detention.
In July, as I explained in an article entitled, "The Schizophrenic in Guantánamo Whose Lawyers Are Seeking to Have Him Sent Home," Jennifer Cowan, Idris' attorney, "asked the court to release her client because he is so mentally ill and so morbidly obese that he cannot be regarded as a threat." As I added, "In Hamdi v. Rumsfeld, in June 2004, the Supreme Court stated that the law used to hold prisoners at Guantánamo, the Authorization for Use of Military Force (AUMF), passed the week after the 9/11 attacks, only allowed the government to hold a prisoner 'for the purpose of preventing him from returning to the battlefield.'”
As Jennifer Cowan described the situation in her submission to Senior District Judge Royce C. Lamberth:
Petitioner’s 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. When interpreted in accordance with domestic law and the principles of international law, the Authorization for the Use of Military Force (“AUMF”) does not permit the continued detention of Mr. Idris.
In September 2012, Idris was included on a list of 55 prisoners cleared for release by the Guantánamo Review Task Force, which was made publicly available by the Justice Department in a court case. This was in marked contrast to the position taken by the authorities at Guantánamo in his Detainee Assessment Brief (DAB), the classified military file released by WikiLeaks in 2011. Idris' file was compiled in April 2008, and, as I explained in my article in July, it "ought to be a source of shame to the authorities." In it, the authorities claimed, “Detainee has resisted cooperation with interrogators and remains largely unexploited,” adding, “He has coached other JTF-GTMO detainees to use resistance techniques while in U.S. custody.” As Carol Rosenberg explained in the Miami Herald, far from coaching others, “his fellow prisoners don’t want him around,” because “he behaves bizarrely -- wears his underwear on his head, whispers to himself, is delusional.”
The Justice Department's decision about Idris was issued on October 2, and in it the lawyers stated:
In late 2009, the Executive Branch decided, pursuant to the recommendation of the Guantánamo Review Task Force, that the United States could relinquish custody of Petitioner with certain assurances from a receiving country, including assurances related to the availability of medical care in the receiving country … Based on consideration of all relevant information specific to the circumstances of Petitioner, including that decision, the Executive Branch has determined that it will no longer contest Petitioner’s Petition for Writ of Habeas Corpus.
The Justice Department lawyers added that they were "withdrawing their reliance upon their amended factual return, filed on October 22, 2008," which, essentially, rehashed the implausible story contained in Idris' Detainee Assessment Brief.
In a two-line order issued on October 4, Judge Lamberth ordered Idris' release. His order stated, "Petitioner’s unopposed Petition for Writ of Habeas Corpus is hereby granted. The United States shall take all necessary and appropriate diplomatic steps to facilitate Petitioner’s release."
What is particularly noteworthy about the Justice Department's decision in the case of Ibrahim Idris is that it marks the first time that the Civil Division lawyers -- those responsible for dealing with the prisoners' habeas petitions -- have backed down. In place since the days of George W. Bush, the lawyers have vigorously contested every petition as though the fate of the United States depended on it. This may make sense given the adversarial nature of the law, but what doesn't make sense is that petitions have been fought even when the men in question have been cleared for release by President Obama's Guantánamo Review Task Force.
I am unable to explain why there has been no cross-referencing of cases between the task force (which involved officials from the Justice Department) and the Civil Division of the DoJ, or why Attorney General Eric Holder has maintained the status quo, and no other senior official, up to and including the President, has acted to address this troubling lack of joined-up thinking. However, it is to be hoped that it signals the possibility for further successful challenges by prisoners who are ill -- as well as opening up the possibility for cleared prisoners to call for their release through the habeas process. As the Associated Press reported this week, lawyers for another severely ill prisoner, Tariq al-Sawah (aka Tarek El-Sawah), an Egyptian, are also seeking his release, and lawyers for Saifullah Paracha, a Pakistani who is very ill with cardiac problems, also spoke to the AP about their client’s case. Noticeably, neither man was cleared for release by the task force, but it is clear their illnesses are not something that the authorities can endlessly ignore.
Periodic Review Boards begin for 71 prisoners not cleared for release
The third recent development centers on the Pentagon's announcement, on October 9, that the Periodic Review Board (PRB) process is "underway." This process, a press release noted, "was established to review whether continued detention of certain detainees held at Guantánamo Bay remains necessary to protect against a continuing significant threat to U.S. national security."
The start of this process is long overdue, as 46 of the remaining 164 prisoners were designated for indefinite detention by President Obama in an executive order in March 2011, a depressing announcement that was only made faintly palatable by the promise that they would receive periodic reviews of their cases. The men had been recommended for indefinite detention by the Guantánamo Review Task Force, which had concluded that they were too dangerous to release, even though insufficient evidence existed to put them on trial, and the task force's shameful conclusions were then embraced by the president.
The problem, of course, is that not having evidence that can be used in a court -- even in Guantánamo's military commissions -- means that the information does not rise to the level of evidence, and is either tainted by torture, or is the kind of hearsay that permeates the supposed evidence, as demonstrated in the Detainee Assessment Briefs released by WikiLeaks, which are full of dubious statements made by prisoners who, if not tortured, were subjected to other forms of abuse, or were bribed with better living conditions, or were mentally ill, or simply gave up resisting the interrogators and told them what they wanted to hear.
The PRB process is better than endless detention without review, although it remains to be seen how much the dubious information used to justify the detention of the majority of these 71 men is tested. The Pentagon noted that, unlike the Combatant Status Review Tribunals and Administrative Review Boards run by the military under George W, Bush, the PRBs include "a cross-section of the national security community," as the decision-making panel "consists of one senior official from the Departments of Defense, Homeland Security, Justice, and State; the Joint Staff; and the Office of the Director of National Intelligence."
Nevertheless, the process does not necessarily look demonstrably different from the CSRTs and ARBs, in which the prisoners did not have access to the classified evidence against them, and were represented not by a lawyer, but by a "personal representative" from the military, who was at liberty to decide the extent to which they were interested in their client's case.
As the Pentagon press release notes, "In every PRB proceeding, the detainee will be provided with a uniformed military officer (referred to as a personal representative) to assist the detainee during the PRB process." The press release also states:
[D]etainees will be provided an unclassified written summary of the information considered by the PRB and will be permitted to respond with statements written by themselves and witnesses. Detainees will also be afforded the opportunity to appear before the PRB via video or telephone conference. Detainees may request the presentation of testimony at the hearing by witnesses who are reasonably available and willing to offer relevant and material information regarding whether continued law of war detention is warranted.
In addition, it is noted that the personal representatives "will have the security clearance necessary to review the information provided to the Board and will be responsible for advocating on behalf of the detainee, challenging the government’s information, and introducing information on behalf of the detainee," although no indication is given about the impetus for the personal representatives to do a good job, or what access to information they will have if they decide to represent their clients to the best of their ability.
Noticeably, prisoners "will also have the ability to obtain private counsel," so long as it is "at no expense to the government," to assist them in the review process.
It is also noted that both personal representatives and private lawyers "possessing an appropriate security clearance" will "receive full access to the information considered by the PRB, except in the rare instances where doing so would put the national security at risk." This is presumably an improvement on the CSRTs and ARBs, for prisoners who already have legal representation, as the majority of the prisoners do, but it remains to be seen if the decision-making panels will be interested in revising the cautious and in many cases completely erroneous recommendations made by the Guantánamo Review Task Force nearly four years ago.
It is to be hoped so, as these recommendations erred severely on the side of caution.
In conclusion, reviewing the developments of the last week, we hope not only to see a review process that robustly questions the supposed evidence eased to justify these 71 men, but also to see movement on the release of the 84 prisoners cleared for release, and further welcome decisions not to contest habeas corpus petitions by the Justice Department. It is time for major steps to be taken that advance the administration's stated aim of closing the prison at Guantánamo Bay.