By Andy Worthington, January 6, 2016
On January 11, the prison at Guantánamo Bay will, shamefully, have been open for 14 years. To mark the occasion, as usual, I will be visiting the U.S. from the U.K., as the co-founder of "Close Guantánamo," to call for the prison's closure. I will be visiting Miami, Washington, D.C. and New York City (see here for details), and the centerpiece of my visit is the protest outside the White House at 12 noon on January 11, followed by a panel discussion at New America (formerly the New America Foundation) at 3pm.
The protest outside the White House involves not just Close Guantánamo, but also Amnesty International USA, the Bill of Rights Defense Committee and Defending Dissent Foundation, the Council on American-Islamic Relations, the Center for Constitutional Rights, Code Pink, the National Coalition to Protect Civil Freedoms, the National Religious Campaign Against Torture, Torture Abolition and Survivors Support Coalition, Witness Against Torture and the World Can’t Wait. I will be speaking, along with representatives of the other groups.
The panel, to discuss, as New America describes it, “what can or can’t be done in the next year, and whether President Obama’s promise [to close Guantánamo] will ever be fulfilled,” also features US attorney Tom Wilner, the other co-founder of "Close Guantánamo," and Karen Greenberg, Director of the Center on National Security at Fordham University and author of The Least Worst Place: Guantánamo’s First 100 Days. The moderator is Peter Bergen, the Director of the International Security, Future of War, and Fellows Programs at New America.
This will be the fifth time that Tom and I have discussed Guantánamo on or around the anniversary of its opening. We took a year off in 2014, but see here for the videos from 2011, 2012, 2013 and 2015. You can also see videos of me outside the White House in 2013 and 2015.
This is President Obama's last year in office, and it will, very soon, be seven years since he promised, on his second day in office, to close Guantánamo within a year. In the next few weeks, we'll be launching a new initiative -- the Countdown to Close Guantánamo -- but in the meantime you can find the first broad outlines of our position in Andy's post from November, "Playing Politics with the Closure of Guantánamo," and below is a reiteration of these themes for the coming anniversary.
Broadly speaking, we call for the following:
1. President Obama must release, as swiftly as possible, the 46 men approved for release but still held, out of the 105 men still held. 35 of these men have been approved for release since January 2010, when President Obama's high-level, inter-agency Guantánamo Review Task Force reviewed the cases of all the prisoners held when he took office. 11 others have been approved for release in the last two years by Periodic Review Boards. We hear that 15 prisoners are to be released soon, to add to the two Yemenis just released to Ghana, and are pleased with this news, but we reiterate that it is absolutely unacceptable to approve prisoners for release and then not to release them.
2. President Obama must speed up the Periodic Review Boards, which were established in 2013 to review the cases of all the men not already approved for release by the task force, and not facing trials. Described by the media as "forever prisoners," they were regarded by the task force as "too dangerous to release," although the task force acknowledged that insufficient evidence existed to put them on trial (meaning it is not evidence at all), or they were put forward for trials -- until the basis for trials collapsed as the result of a number of appeals court decisions (see here and here).
18 cases have so far been decided by the boards, made up 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, and 15 of those men have been approved for release, an 83% success rate that thoroughly discredits the claim that these men are "too dangerous to release." Unfortunately, the reviews have been taking place too slowly, and 43 other men are awaiting reviews, which will not be completed until 2020 at the current rate, even though, when Obama issued an executive order authorizing the ongoing imprisonment of those regarded as "too dangerous to release" in March 2011, it stated, "For each detainee, an initial review shall commence as soon as possible but no later than 1 year from the date of this order."
3. The only men facing, or having faced trials -- just ten men in total -- should then be moved to the U.S. mainland to face federal court trials, once the disgraced military commissions are brought to an end, along with any prisoners who have not been approved for release by a Periodic Review Board. This is why the PRB process must be sped up considerably in 2016.
We realize that some people are alarmed at the prospect of men being held without charge or trial on the U.S. mainland, but we must point out that Guantánamo is, functionally, U.S. soil, even if Cuba, theoretically, has sovereignty over it. It is also clear, as Tom Wilner has pointed out, that, "If the detainees are brought to the United States, the government loses its prime argument for denying them constitutional rights. The imprisonment of anyone without charge or trial on the U.S. mainland is radically at odds with any concept of constitutional due process. Bringing them to the United States means that they would almost certainly have full constitutional rights and the ability to effectively challenge their detentions in court. They would then no longer be dependent solely on the largesse of the Obama administration, or whatever administration happens to follow it, but could gain relief through the courts."
4. It would also help considerably if the administration -- via the Justice Department -- would stop challenging prisoners' habeas corpus petitions. Since June 2008, the prisoners have been able to contest their imprisonment via the courts, although in 2010 and 2011 judges in the appeals court in Washington, D.C. (the D.C. Circuit Court) gutted habeas corpus of all meaning for the prisoners by insisting that judges had to regard any information presented by the government as presumptively accurate, even though, objectively, it was ridiculous to presume that the mixture of hearsay and coerced statements that makes up the majority of the information used against the prisoners is even vaguely reliable.
The Justice Department, however, has only failed to challenge one habeas petition (in the case of a very ill Sudanese prisoner), and, as I discussed last August (and then wrote about here), "a lack of joined-up thinking -- in the [Justice Department's] Civil Division, but also, it must be said, in the offices of the president and the Attorney General -- meant that [eleven] men approved for release by the task force either had their habeas petitions successfully challenged by the Justice Department, or had successful petitions overturned by the court of appeals in Washington, D.C."
While we wait to see if Congress will work with President Obama to close Guantánamo or if the president has to go it alone, you can ask President Obama to speed up the release of prisoners from Guantánamo, and the Periodic Review Boards, by calling the White House on 202-456-1111 or 202-456-1414 or you can submit a comment online.
You can also call the Department of Defense and ask Defense Secretary Ashton Carter to speed up prisoner releases and the PRB process on 703-571-3343.