End 14 Years Of Injustice

14 Years After 9/11, It's Time for Guantánamo to Be Closed

Campaigners for the closure of Guantanamo outside the White House on January 11, 2015

Protestors calling for the closure of Guantánamo outside the White House on January 11, 2015, the 13th anniversary of the opening of the prison (Photo: Andy Worthington via Flickr).

By Andy Worthington, September 11, 2015

14 years after the terrorist attacks of September 11, 2001, it is time to take stock of what has -- or hasn't -- been achieved, and what the cost has been for America's standing in the world, how it sees itself and its values.

Unfortunately, an honest audit delivers an alarming response. As Tom Engelhardt has written in "Mantra for 9/11: Fourteen Years Later, Improbable World," an article to mark the anniversary:

Fourteen years of wars, interventions, assassinations, torture, kidnappings, black sites, the growth of the American national security state to monumental proportions, and the spread of Islamic extremism across much of the Greater Middle East and Africa. Fourteen years of astronomical expense, bombing campaigns galore, and a military-first foreign policy of repeated defeats, disappointments, and disasters. Fourteen years of a culture of fear in America, of endless alarms and warnings, as well as dire predictions of terrorist attacks. Fourteen years of the burial of American democracy (or rather its recreation as a billionaire’s playground and a source of spectacle and entertainment but not governance). Fourteen years of the spread of secrecy, the classification of every document in sight, the fierce prosecution of whistleblowers, and a faith-based urge to keep Americans “secure” by leaving them in the dark about what their government is doing. Fourteen years of the demobilization of the citizenry. Fourteen years of the rise of the warrior corporation, the transformation of war and intelligence gathering into profit-making activities, and the flocking of countless private contractors to the Pentagon, the NSA, the CIA, and too many other parts of the national security state to keep track of. Fourteen years of our wars coming home in the form of PTSD, the militarization of the police, and the spread of war-zone technology like drones and stingrays to the “homeland.”

Engelhardt's article is important, but although he mentions torture and black sites, he doesn't specifically mention indefinite detention without charge or trial, and yet that is a crucial betrayal of American values; indeed, of values upon which all nations that dare to call themselves civilized pride themselves.

And it is at Guantánamo Bay, the U.S. outpost in Cuba, chosen by the Bush administration for a post-9/11 prison that was established to be beyond the reach of U.S. law, that indefinite detention without charge or trial continues.

It was at Guantánamo that the norms of detention policy were dismissed by George W. Bush, Dick Cheney, Donald Rumsfeld and their lawyers and advisors. A key part of the post-9/11 global network of CIA black sites for torture, proxy torture prisons and military prisons where the Geneva Conventions were discarded, Guantánamo has remained open while the others have, for the most part, been shut down.

And let us be clear: the prison at Guantánamo Bay, which opened exactly four months after the 9/11 attacks and has now been open for 13 years and eight months, shames the U.S. with each day that it remains open.

On this dreadful anniversary, when we must all pause to recall the 2,977 people who lost their lives, we must not shy away from also addressing the fallout from the Bush administration's cruel and misguided response to the attacks, and to call for the closure of Guantánamo.

Searching for a prison on the U.S. mainland

In recent weeks, we have been hearing about the Obama administration's proposals to find a facility on the U.S. mainland to hold some of the men still held at Guantánamo, so the prison at the naval base in Cuba can be shut down -- primarily, the Fort Leavenworth military detention facility in Kansas and the Navy Brig in Charleston, South Carolina.

Typically, there has been opposition from Republican lawmakers to these suggestions and others, which should come as no surprise to anyone, let alone the administration, because, for many years now, the Republicans have been raising cynical obstructions to President Obama's plans to close the prison. These include a ban on bringing any prisoners to the U.S. mainland for any reason, and a requirement that Congress be notified 30 days before any planned prisoner release, and that the defense secretary sign off on any planned release, certifying that steps have been taken to mitigate any risk to the U.S.

However, what has been lost in all the scaremongering, for the most part, is an analysis of the 116 men still held, and what the proposal to close the prison means.

For 53 of these men, the proposals ought not to affect them, as they should be released -- and the majority of them should have been released years ago.

44 of them were told over five years ago that the U.S. no longer wanted to hold them, after the deliberations of the high-level, inter-agency Guantánamo Review Task Force that President Obama established shortly after taking office in 2009. The task force issued its final report in January 2010, and yet these men -- 37 Yemenis and seven men from other countries, including Shaker Aamer, the last British resident in the prison -- are still held.

The other nine men -- seven Yemenis, an Egyptian and a Libyan -- have been approved for release in the last 20 months by Periodic Review Boards, which consist of representatives of the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff. The PRBs were established to review the cases of all the men not already approved for release or facing trials -- the latter consisting of just ten of the 116 men still held.

Releasing these men ought to be a priority for the government, as we at Close Guantánamo have stressed repeatedly. Indefinite dentition without charge or trial is the hallmark of a dictatorship, and yet even a dictatorship would not be so cruel as to dream up a review process, undertake those reviews, recommend men for release and then not release them, because that is a particularly cruel form of injustice.

President Obama ought to care about this injustice, as should defense secretary Ashton Carter, who, shamefully, has not yet signed off on the release of a single prisoner since taking up his position in February (the six men released in Oman in June were part of a deal approved under his predecessor, Chuck Hagel).

As Daphne Eviatar noted in a recent article for Just Security:

[I]t’s not clear why the Secretary of Defense isn’t more focused on transferring the 52 detainees at Guantánamo who’ve already been cleared for release for many years. He is reportedly the stumbling block to their leaving.

Whether it’s the sickly, 75-pound Tariq Ba Odah who was cleared to leave six years ago or the [44] Yemenis who could be transferred to other countries with security protections, transferring the detainees who’ve been cleared to go by a painstaking multi-agency review process ought to be Secretary Carter’s number one concern right now. After all, these men, none convicted or even accused of any crime, have been imprisoned for more than a decade. They remain at Guantánamo at the absurd cost of $3.4 million per detainee annually. Few will lament their transfer. And the fewer that remain at Guantánamo, the more absurd the cost will become of maintaining them there.

The "forever prisoners"

Once these 53 men are removed from consideration regarding the closure of Guantánamo (as they should be through their release), it becomes apparent that the move to the U.S. mainland is envisaged for just 63 men -- the ten facing trials, and 53 others who are all eligible for Periodic Review Boards. In some cases, these men were recommended for prosecution by the Guantánamo Review Task Force, but the proposed charges evaporated when the appeals court in Washington D.C. ruled decisively (in a number of rulings from 2013 to this year) that the administration was trying to prosecute people on war crimes charges that were not legitimate, and had been invented by Congress.

In other cases, the task force concluded that the men in question were "too dangerous to release," but that insufficient evidence existed to put them on trial. 48 men were initially placed in this category, and when President Obama issued an executive order authorizing their ongoing detention without charge or trial, in March 2011, he was embarrassed enough to include a promise that they would receive periodic reviews of their cases, to see if they were still regarded as "too dangerous to release." Those reviews are the PRBs, which didn't commence until November 2013, and whose remit was broadened to include a number of men originally recommended for prosecution, as outlined above.

However what this discussion misses is the crucial problem with a government body deciding that people are "too dangerous to release," but that insufficient evidence exists to put them on trial. What that means, bluntly, is that the so-called evidence is no such thing -- and in the formerly classified military files relating to the Guantánamo prisoners (the Detainee Assessment Briefs that were admirably released by WikiLeaks in 2011 after they were leaked by Pvt. Chelsea Manning), it is clear that the so-called evidence consists, in large part, of statements made by other prisoners, either in Guantánamo, in Afghanistan prior to their transfer to Guantánamo, or in CIA "black sites," and that torture and other forms of abuse render much of it meaningless.

In addition, as Daphne Eviatar pointed out in her article, the reviews will "likely lead to more detainees being eligible for transfer, especially since so many of them were captured based on unreliable information from foreign intelligence agents, many of whom were paid bounties to turn suspects over" -- two other themes that may have been lost in the discussion of Guantánamo over the years: the extent to which prisoners were overwhelmingly seized not by U.S. forces, but by their Afghan and Pakistani allies, and the extent to which the widespread offer of bounty payments (of, on average, $5,000 a head -- a huge amount of money in that part of the world) for al-Qaeda and/or Taliban suspects created a market for innocent people to be sold to the U.S.

It is also clear, from a detailed analysis of those making the allegations in the files released by WikiLeaks that they also include statements made by prisoners who lied, either to gain privileges, or because they had mental health issues, or simply because they could no longer stand the relentless pressure of interrogations, when they -- along with every other prisoner, including those in the "black sites" -- were repeatedly shown photo albums of other prisoners (referred to by the U.S. authorities as "the family album") and pressurized to say that they knew people whether they did or not.

In the months to come, I will be conducting a renewed analysis of these files, but for now it is my hope that people will begin to reflect on the extent to which the supposed evidence against the prisoners is profoundly and irredeemably untrustworthy, and will recognize that many of these 53 men will end up being approved for release after their Periodic Review Boards.

To that end, another important message for the administration is to increase the speed with which the PRBs take place, because just 17 prisoners have had their cases reviewed in the 22 months since the PRBs were set up, and with 53 men still awaiting reviews, the initial process of reviewing everyone will not be completed until May 2021 unless it speeds up significantly.

Closing Guantánamo

In the end, Tom Wilner and I, the founders of Close Guantánamo, believe that serious questions should be asked before any prisoner is transferred to the U.S. -- except those facing trials, which should take place in federal court rather than in the thoroughly discredited military commissions. We do, however, acknowledge that the administration may not immediately accept that everyone else should be released, although we are sure that an objective analysis of the so-called evidence will indicate that few of those not facing trials can legitimately be regarded as significant.

After all, in 2004, a New York Times article reported, “In interviews, dozens of high-level military, intelligence and law enforcement officials in the United States, Europe and the Middle East said that, contrary to the repeated assertions of senior administration officials, none of the detainees at the United States Naval Base at Guantánamo Bay ranked as leaders or senior operatives of al-Qaida.” At that time, 750 of the 779 men held in total by the military at Guantánamo were already at the prison, or had already been released. After that, 14 "high-value detainees" were moved to Guantánamo from "black sites," amongst them some of the men currently facing trials.

If the administration insists on transferring a few dozen men in total to the U.S. mainland, having released everyone else, Tom and I remain convinced that they will find it impossible to hold them for long without putting them on trial, because we believe that the U.S. Constitution does not permit indefinite detention without charge or trial.

For now, however, we call on the government to speed up the release of prisoners, and to speed up the Periodic Review Boards, and to President Obama we say that, if Ashton Carter -- or anyone else in the Pentagon -- is the stumbling block to any of these releases, he must expend political capital overcoming those obstacles.

Just as the president has the power to bypass Congress, if he wishes to exercise it, so too can he override an intransigent Department of Defense. It should not come to that, but if it does come to any sort of showdown, only one man in this scenario is the President of the United States and the Commander in Chief, and that man, Barack Obama, must not leave office without fulfilling the promise he made on his second day as president in January 2009 -- to close the prison at Guantánamo that remains a legal, ethical, and moral abomination.