[Guantanamo, a prison built for those detained in Americas
never-ending Global War on Terror, has been open for almost 21 years.
Will Americas forever prison finally close?]
[[link removed]]

WILL GUANTÁNAMO CLOSE ON BIDEN’S WATCH?  
[[link removed]]


 

Karen J. Greenberg
December 8, 2022
tomdispatch [[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ Guantanamo, a prison built for those detained in America's
never-ending Global War on Terror, has been open for almost 21 years.
Will America's forever prison finally close? _

Welcome to Guantanamo..., Paul Keller (CC BY 2.0)

 

As of December 8, 2022, Guantánamo Bay detention facility — a
prison offshore of American justice and built for those detained in
this country’s never-ending Global War on Terror — has been open
for nearly 21 years (or, to be precise, 7,627 days). Thirteen years
ago, I published a book, _The Least Worst Place: Guantanamo’s First
100 Days_
[[link removed]].
It told the story of the military officers and staff who received the
prison’s initial detainees at that U.S. naval base on the island of
Cuba early in 2002. Like the hundreds of prisoners that followed, they
would largely be held without charges or trial for years on end.

Ever since then, time and again, I’ve envisioned writing the story
of its ultimate closure, its last days. Today, eyeing the moves made
by the Biden administration, it seems reasonable to review the past
record of that prison’s seemingly never-ending existence, the
failure of three presidents to close it, and what if anything is new
when it comes to one of the more striking scenes of ongoing injustice
in American history.  

THE BEGINNING

When, in January 2002, those first planes landed at Guantánamo (which
we came to know as Gitmo), the hooded, shackled, goggled, and diapered
prisoners in them were described
[[link removed]] by
the Pentagon as “the worst of the worst.” In truth, however, most
of them were neither top leaders of al-Qaeda nor, in many cases, even
members of that terrorist group. Initially housed
[[link removed]] at
Camp X-Ray in open-air cages without plumbing, dressed in those
now-iconic orange jumpsuits
[[link removed]],
the detainees descended into a void, with little or no prison policies
to guide their captors. When Brigadier General Michael Lehnert, the
man in charge of the early detention operation, asked Washington for
guidelines and regulations to run the prison camp, Pentagon officials
assured him that they were still on the drawing board, but
that adhering
[[link removed]] in
principle to the “spirit of the Geneva Conventions” was, at least,
acceptable.

Those first 100 days left General Lehnert and his officers trying to
provide some modicum of decency in an altogether indecent situation.
For example, Lehnert
[[link removed]] and
those close to him allowed one detainee to make a call to his wife
after the birth of their child. They visited others in their cells,
talked with them, and tried to create conditions that allowed for some
sort of religious worship, while forbidding interrogations by
officials from a variety of U.S. government agencies without a staff
member in the interrogation hut as well. Against the wishes of
Secretary of Defense Donald Rumsfeld and the Pentagon, a lawyer
working with the general even called in representatives of the
International Committee of the Red Cross.

By the end of March 2002, the U.S. had installed
[[link removed]] prefab
prisons at Guantánamo in which those detainees could be all too
crudely housed and had brought in a new team of officers to oversee
the operation while pulling Lehnert and his crew out. The new
leadership included people reporting directly to Rumsfeld as they put
in place a brutal regime whose legacy has lasted, in all too many
ways, to this day.

Despite General Lehnert’s efforts, in the nearly 21 years since its
inception, Guantánamo has successfully left the codes of American
law, military law, and international law in the dust, as it has
morality itself in a brazen willingness to implement policies of
unspeakable cruelty. That includes both physical mistreatment
[[link removed]] and
the limbo of allowing prisoners to exist in a state of indefinite
detention. Most of its detainees were held without any charges
whatsoever, a concept so contrary to American democracy and legality
that it’s hard to fathom how such a thing could happen, no less how
it’s lasted these 7,627 days.

BUSH’S PRISON

As the 35
[[link removed]] prisoners
still in Guantánamo illustrate, no president has yet found a way to
close that prison completely. George W. Bush, who opened it, did
eventually acknowledge that it would be best to shut it down. As he
put it to a German television audience
[[link removed]] in
May 2006, “I very much would like to end Guantánamo. I very much
would like to get people to a court.”

He was, however, anything but decisive on the subject. As he told a
White House press conference
[[link removed]] that
June, “I’d like to close Guantánamo, but I also recognize that
we’re holding some people that are darn dangerous, and that we
better have a plan to deal with them in our courts. And the best way
to handle — in my judgment, handle these types of people is through
our military courts.” That month the Supreme Court
[[link removed]] invalidated the _ad
hoc_ military tribunals that had by then been formed at Gitmo and, in
the fall of 2006, Congress passed the Military Commissions Act
[[link removed]],
formally creating the courts Bush had imagined.

[[link removed]]

Buy the Book
[[link removed]]

Pointing
[[link removed]] out
that shuttering the prison was “not as easy a subject as some may
think on the surface,” the president then began pursuing another
approach — namely, releasing uncharged prisoners and returning them
to their home countries or transferring them elsewhere. And his
administration did, in the end, release about 540
[[link removed]] of
the 790 prisoners held there. Gitmo accepted its last prisoner in
March 2008.

Meanwhile, a 2008 Supreme Court ruling
[[link removed]] granting
detainees the right to challenge their detention by filing _habeas
corpus_ petitions in federal court opened a new path toward future
freedom. Twenty-three of those detainee petitions were granted before
Bush left office, but the prison, of course, remained open.    

OBAMA’S WELL-INTENTIONED BUT FAILED EFFORTS

Barack Obama initially signaled his desire to close Guantánamo on the
campaign trail and then, in one of his first acts as president, issued
an executive order
[[link removed]] calling for it
to be shut down within a year. “If any individuals covered by this
order remain in detention at Guantánamo at the time of closure of
those detention facilities,” it read, “they shall be returned to
their home country, released, transferred to a third country, or
transferred to another United States detention facility in a manner
consistent with law and the national security and foreign policy
interests of the United States.” With new energy, the Obama
administration plunged ahead on the two fronts Bush had halfheartedly
pursued: establishing military commissions and transferring certain
prisoners directly to their home countries or others willing to accept
them.

On Obama’s watch, a reformed version of the Guantánamo tribunals
was authorized by the passage of the 2009 Military Commissions Act,
resolving five cases, all with guilty pleas. In addition, his
administration edged toward closure by transferring nearly 200
[[link removed]] more
prisoners to willing countries in a vigorous effort over the final
year and a half of his presidency.  Still, he encountered
unanticipated opposition within Congress. Although the military
commissions did start anew under Obama, so many years later,
their trial
[[link removed]] of
the five prisoners alleged to have been actual 9/11 co-conspirators
has still not been scheduled.

In addition, under Obama, numerous _habeas corpus_ petitions were
filed in federal court, often falling victim to defeat in appellate
courts. As Shayana Kadidal, the Center for Constitutional Rights’
senior managing attorney for Gitmo litigation, summed it up
[[link removed]] at _Just
Security_: “By 2011, the then sharply conservative D.C. Circuit had
rendered it more or less impossible for detainees to prevail on
their _habeas _petitions.”

Obama’s team did seem to add a new possibility for aiding the
closure process by transferring 
[[link removed]]one
detainee to federal court for trial
[[link removed]] on
terrorism charges. In 2010, Ahmed Ghailani stood trial in New York
City for participating in the bombings of two U.S. embassies in East
Africa. He was found guilty and sentenced to life in prison on U.S.
soil. But in the end, the trial
[[link removed]] proved
fraught with problems, including the fact that the defendant was
acquitted on 284 of 285 charges and so it would prove to be not just
the first but the last such trial. In fact, in the 2011 National
Defense Authorization Act
[[link removed]],
Congress included a ban on the transfer to the United States of any
further Gitmo detainees for any reason whatsoever.

All told, though the Obama administration poured far more energy into
the effort to close Gitmo than the Bush administration had, the
president failed during his terms in office to do so. In his last
year, Obama continued to push hard with the rallying cry
[[link removed]],
“Let’s go ahead and get this thing done!” He called for renewed
federal trials on U.S. soil and prisoner incarceration in the United
States, noting that Guantánamo was “contrary to our values” and
“undermines our standing in the world” — not to mention the $450
million annual price tag for keeping it open.

He put the blame for failure squarely on the growing political divide
in the country and openly worried
[[link removed]] about
what it meant not to succeed. “I don’t want to pass this problem
on to the next President, whoever it is,” he said. And, of course,
we know just who he was.

TRUMP’S “BAD DUDES”

Not surprisingly, passing Guantánamo on to Donald Trump fulfilled
whatever misgivings he had. Unlike Presidents Bush and Obama, Trump
displayed no interest whatsoever in closing it. His instinct was to
reaffirm its standing as a legal black hole. On the campaign trail in
2016, in fact, he swore
[[link removed]] that
“we’re gonna load it up with some bad dudes, believe me, we’re
gonna load it up.” On taking office, he almost instantly signed
[[link removed]] an
executive order to keep Gitmo open. 

Still, no new detainees were actually added during his term in office.
In 2020, he even suggested
[[link removed]] it
should house people infected with Covid, but as it turned out,
expanding its activities was as elusive a goal for Trump as closing it
had been for his predecessors.

While his threats of adding inmates amounted to naught, his presidency
basically put that prison camp on pause. He even stopped the process
of transferring five detainees
[[link removed]] cleared
for release by the Obama team. Only one prisoner, Ahmed Muhammad Haza
al-Darbi, who had pleaded guilty in 2014 in the military commissions,
was released
[[link removed]] during
Trump’s time in office. Meanwhile, the military commissions remained
essentially stalled on his watch and Congress continued the ban on
moving any of the detainees to the U.S.

BIDEN’S GITMO

When Joe Biden entered office, 40
[[link removed]] prisoners
remained at Guantánamo Bay. In his first weeks, his aides called for
a formal review of their cases and his spokesperson Jen
Psaki announced
[[link removed]] the
administration’s intention to close the prison camp before he left
office. Having learned from Obama’s mistakes, however, Biden made no
sweeping public promises.

His administration nonetheless put renewed energy into both transfers
and trials. The military commissions have indeed ramped up in recent
months. Pretrial hearings have recently been held in the four pending
military tribunal cases. In addition, plea deals
[[link removed]] that
would take the death penalty off the table are reportedly being
negotiated for the five
[[link removed]] 9/11
defendants.

Three of the five detainees cleared for release by the Obama
administration have finally been transferred
[[link removed]] to
other countries, while all but three of the 27 prisoners not cleared
when Biden took office have been greenlighted to go home or to a third
country. In doing so, several previously blocked thresholds were
crossed. As of early 2021, when the government cleared detainee Guled
Hassan Duran, it signaled that, for the first time, there was a
willingness to release even those who had been subjected to torture
while held at CIA “black sites” in the early years after 9/11. The
point was made even more strongly three months later when Mohammed al
Qahtani, who experienced some of the worst treatment
[[link removed]] at
American hands, was also finally released
[[link removed]].

Meanwhile, in September 2022, President Biden appointed former State
Department coordinator for counterterrorism and former ambassador to
Kosovo, Tina Kaidanow
[[link removed]],
to oversee the transfer of prisoners cleared for release. While her
position doesn’t replicate the formidable office of the Special
Envoy for Guantánamo Closure that Obama established and Trump nixed,
it is a promising move. The job of arranging each prisoner transfer,
assuring the security of the detainee, and assessing that the release
will not pose a danger to the United States is challenging but
achievable, as prior releases have demonstrated. All told, recidivism
rates for Guantánamo detainees, as reported by the Director of
National Intelligence
[[link removed]],
have been 18.5%, though only 7.1% for those released under Obama.

IN THE END…?

The last question, these 7,627 nightmarish days later, might be this:
Are there any options for the final Gitmo prisoners? In 2017, military
defense lawyers Jay Connell and Alka Pradhan, joined by researcher
Margaux Lander, pointed out
[[link removed]] that,
under international law, victims of “torture, and cruel, inhuman and
degrading treatment” have the right to full rehabilitation. In
addition to seeking the removal of the death penalty in their cases,
the 9/11 defendants at Gitmo have reportedly asked for access to a
torture rehabilitation program.

Pradhan, who represents 9/11 defendant Ammar al Baluchi has summed the
situation up well:

“The United States has utterly failed to give these men either a
fair trial or medical treatment for their torture in violation of
their legal obligations. Most of the evidence in the 9/11 case is
torture-derived, and the men are deteriorating quickly from the brain
and other injuries inflicted by U.S. torture nearly 20 years ago. The
Department of Defense has confirmed that they don’t currently have
the ability to provide complex medical care at Guantanamo, so the most
ethical solution is to transfer the men to locations where they can
obtain the care they require.”

In fact, after all these years in prison, releasing those who might
otherwise still stand trial and putting them in rehabilitation centers
might indeed be a good idea.

There are many ways to address a wrong. Arguably, the greater its
magnitude, the more leeway should be given for subsequent actions. As
the Biden administration has taken steps towards closing Gitmo,
perhaps the gesture of sending the defendants in the military
commissions to rehabilitation programs is a good one. 

For years, General Lehnert has told Congress, media outlets, and
anyone who would listen that it remains imperative, however difficult,
to finally shut the prison down. As he has written
[[link removed]],_“_Closing
Guantánamo is about reestablishing who we are as a nation.” It
might not quite accomplish that, but it would certainly be a
formidable step in that direction. After all, its legacy of torture,
indefinite detention without charges or trials, and the reckless
disregard for the rule of law will no doubt haunt us for years.

There is no way to fathom the harm caused by the torture, cruel
treatment, legal limbo, injustice, and dehumanization that has become
the definition of Guantánamo. But for the first time in all these
years, its actual closure might realistically be on the horizon. One
can always hope, right?

Copyright 2022 Karen Greenberg

_Follow TomDispatch on Twitter
[[link removed]] and join us on Facebook
[[link removed]]. Check out the newest Dispatch
Books, John Feffer’s new dystopian novel, Songlands
[[link removed]] (the
final one in his Splinterlands series), Beverly Gologorsky’s
novel Every Body Has a Story
[[link removed]], and
Tom Engelhardt’s A Nation Unmade by War
[[link removed]],
as well as Alfred McCoy’s In the Shadows of the American Century:
The Rise and Decline of U.S. Global Power
[[link removed]], John
Dower’s The Violent American Century: War and Terror Since World
War II
[[link removed]], and
Ann Jones’s They Were Soldiers: How the Wounded Return from
America’s Wars: The Untold Story
[[link removed]]._

_KAREN J. GREENBERG, a TomDispatch regular
[[link removed]], is the director of the
Center on National Security at Fordham Law and author most recently
of Subtle Tools: The Dismantling of American Democracy from the War
on Terror to Donald Trump
[[link removed]] (Princeton
University Press). Julia Tedesco, Adam Sticklor, and Claudia Bennett
conducted research for this article._

* Guantanamo
[[link removed]]
* War on Terror
[[link removed]]
* Prisons
[[link removed]]
* American Empire
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]

Manage subscription
[[link removed]]

Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]