By Andy Worthington, February 12, 2016
As the Countdown to Close Guantánamo continues, with over 150 people now having submitted photos of themselves holding posters telling President Obama how many days he has left to close the prison at Guantánamo Bay (see the photos here and here), Ben Fox of the Associated Press has provided an informative update about how the Obama administration plans to close the prison before President Obama leaves office.
With just 91 men left at Guantánamo, we have been calling for the 34 men currently approved for release to be released as soon as possible, for arrangements to be made for the men facing (or having faced) trials (just ten of those still held) to be moved to the U.S. mainland, and for reviews to take place as swiftly as possible for the 47 other men, who are all eligible for Periodic Review Boards.
A high-level, inter-agency review process, the PRBs were set up in 2013 to ascertain whether to release or continue holding 46 men previously regarded as "too dangerous to release" (despite a lack of evidence against them) and 25 others recommended for prosecution in military commissions until the courts struck down the charges in most of the trials because they had been invented by Congress.
24 PRBs have taken place to date, and, in the 20 cases decided, 17 men have been recommended for release, an 85% success rate that thoroughly discredits the decision taken by Obama's task force to describe them as "too dangerous to release."
However, it has taken over two years to get to this point, which is why we have been maintaining that President Obama needs to speed up the PRB process if he is to complete them before he leaves office.
For those already approved for release, the administration has made clear its intention to release them by summer, via Lee Wolosky, the State Department’s special envoy for Guantánamo Closure, who made a statement to that effect in January.
However, for the 57 others, it has always appeared to us that what is necessary is for the PRBs to be completed, and -- from our point of view, based on detailed research into the prisoner's cases and discussions with intelligence experts -- for no more than around 18 men to be moved to the U.S. mainland; the seven facing trials (including Khalid Sheikh Mohammed and others accused of involvement in the 9/11 attacks), plus two who have agreed to plea deals, and another man, Ali Hamza al-Bahlul, who has had his November 2008 conviction overturned in the courts, but is still the subject of an appeal by the government, plus -- we estimate -- around eight men who will continue to be regarded as too dangerous to release, but who will be able to launch new legal challenges if moved to the U.S.
Defense secretary Ashton Carter spoke of these men recently, on CNN with Fareed Zakaria, when he said, "There are people in Gitmo who are so dangerous that we cannot transfer them to the custody of another government, no matter how much we trust that government,. The reality is, this portion of the Gitmo population has to be incarcerated somewhere," and later admitted that this "would have to be in the United States."
Carter didn't give a number, but the Associated Press spoke to an administration official, who said, “We are looking at ultimately two dozen people who we would be looking at holding in the United States."
The Associated Press also noted that, because the military commissions "have proven to be so slow" -- and, it should be noted, are, in general, thoroughly discredited -- "the government is looking at 'alternative dispositions' that would include transferring them overseas for prosecution in another country," according to the administration official, who spoke on condition of anonymity. He "declined to say which prisoners or where they might be sent but said they number about a dozen and would be sent to places whose citizens were victims of terrorist attacks."
One obvious example is Hambali (aka Riduan Isamuddin), the alleged mastermind of the Bali bombings in August 2003. The Indonesians were asking for him to be sent to them for trial back in October 2003, shortly after his capture, but instead he was held in CIA "black sites" until his transfer to Guantánamo with 13 other alleged "high-value detainees" in September 2006.
As was reported at the time:
U.S. President George W Bush promised to return Southeast Asia’s top terror suspect Hambali to Indonesia for trial once American investigators have finished questioning him, an Indonesian government spokesman said yesterday.
The White House confirmed that Bush agreed to try to make sure Hambali was handed over to Indonesia. “He committed to work with them at an appropriate time, that he would work to make sure that Hambali was handed over,” White House communications director Dan Bartlett told reporters in Canberra during Bush’s visit there. “He did not set a timetable for that. Indonesian President Megawati Sukarnoputri seemed reassured by that commitment,” Bartlett said.
Hambali, the alleged operations chief of the al-Qaeda linked Jemaah Islamiah network, was arrested in August in Thailand. The Indonesian citizen has been interrogated by U.S. agents at an undisclosed location ever since.
“Absolutely, Bush promised to hand over Hambali to Indonesia for trial,” Indonesian foreign ministry spokesman Marty Natalegawa told The Associated Press. “The only condition is that the process of interrogation (by U.S. agents) has to be completed. Bush said that still needed more time.”
If 24 men are expected to come to the U.S. mainland (and if a Congressional ban on doing so can be overcome one way or another), and if 12 will face trials elsewhere, that still leaves the PRBs as an important arbiter of who should be held and who can go, as PRBs will need to take place that will confirm that it is safe to release 21 other men currently regarded as "forever prisoners," but who, according to the official Ben Fox spoke to, will not be brought to the U.S. or sent elsewhere for trials.
We await further news, but, for now, we definitely regard this as progress.
We also note that Ben Fox's article came about because of a resumption of press visits to Guantánamo after several months in which visits were not allowed, for reasons that have not been made clear, and commend him for also providing an effective snapshot of the current situation at the prison.
Fox began by pointing out that "[e]mpty cells outnumber occupied ones," that a "military task force of 2,000 troops and civilians is now devoted to holding just 91 men," and that the prison "appears to be winding down despite opposition in Congress" to President Obama’s plan to close it.
He added that officials at Guantánamo "portrayed the environment as calmer, with few attacks on the Army soldiers who guard the men and fewer disciplinary problems overall, perhaps related to the fact that for many their long period of confinement is nearing an end." Army Col. David Heath, who commands the guard force, said, "I believe there is some optimism on the part of the detainees who are left here that they might be next."
Fox also noted that "Obama is expected later this month to submit a Guantánamo closure plan to Congress," where, as he added, "it is likely to encounter the same resistance that has prevented the president from making good on the vow to close the facility he made shortly after taking office" -- although it should be mentioned that the president has long had a waiver in the legislation allowing him to bypass Congress if he wished, a waiver he has never used.
As Ben Fox explained, however, when it comes to current Congressional opposition, officials hope that soon "there may be so few prisoners," with the planned release of those already cleared for release, "that some of the opposition will melt away" -- in part, at least, because the less prisoners there are, the more insanely expensive it becomes to continue to imprison those who remain. The administration official said, as Fox described it, that "through a combination of measures they could reduce the number of prisoners currently held at Guantánamo to an 'irreducible number,' that could be small enough to make their presence in the United States acceptable to Congress."
Fox also noted that the Justice Department is "considering an argument by lawyers for Guantánamo prisoners that some could be charged in federal court," an option that was dropped, to what should be President Obama's eternal shame, after he withdrew proposals to hold the 9/11 trial in federal court in New York after Republicans mounted a ludicrous scaremongering campaign against it.
Wells Dixon, a lawyer at the Center for Constitutional Rights, who represents Majid Khan, another alleged "high-value detainee," who agreed to a plea deal at Guantánamo in exchange for testifying at the 9/11 trial (whenever that will be), "welcomed that approach," as Ben Fox described it. Dixon said, "I do think as a general matter that if the administration is serious about closing Guantánamo they are going to have to think creatively about options like federal court prosecutions."