Eleven years since the terrorist attacks on September 11, 2001, the majority of the remaining 168 men in Guantánamo are not held because they constitute an active threat to the United States, but because of inertia, political opportunism and an institutional desire to hide evidence of torture by US forces, sanctioned at the highest levels of government. That they are still held, mostly without charge or trial, is a disgrace that continues to eat away at any notion that the US believes in justice.
It seems like an eternity since there was the briefest of hopes that George W. Bush’s “war on terror” prison at Guantánamo would be shut down. That was in January 2009, but although Barack Obama issued an executive order promising to close Guantánamo within a year, he soon reneged on that promise, failing to stand up to Republican critics, who seized on the fear of terrorism to attack him, and failing to stand up to members of his own party, who were also fearful of the power of black propaganda regarding Guantánamo and the alleged but unsubstantiated dangerousness of its inmates.
The President himself also became fearful when, in January 2010, the Guantánamo Review Task Force, which he himself had appointed, and which consisted of career officials and lawyers from government departments and the intelligence agencies, issued its report based on an analysis of the cases of the 240 prisoners inherited from George W. Bush (PDF). The Task Force recommended that, of the 240 men held when he came to power, only 36 could be prosecuted, but 48 others were regarded as being too dangerous to release, even though insufficient evidence existed to put them on trial.
The rest, the Task Force concluded, should be released, although they also advised that 30 of these 156 men — all Yemenis — should continue to be held in “conditional detention,” dependent on there being a perceived improvement in the security situation in Yemen.
There were severe problems with the Task Force’s recommendations, particularly regarding the 48 prisoners deemed to be too dangerous to release despite the lack of evidence against them, because detention without charge or trial is unacceptable under any circumstances. Also troubling, however, was the Task Force’s decision, without reference to Congress, to designate 30 men for “conditional detention,” as this was a detention category that they invented.
Nevertheless, it was reasonable to assume, when the Task Force’s report was issued, or at the latest in May 2010, when it was made public, that, fairly swiftly, 36 men would be put on trial, and 126 others would be released, allowing the status of the 48 others to be the focus of intense scrutiny.
That, of course, never happened. Plans to try the men faltered when the administration fudged the issue, opting for both federal court trials and an updated version of the military commissions that Dick Cheney had first revived in November 2001. In an announcement made in November 2009, Attorney General Eric Holder stated that five men accused of involvement in the 9/11 attacks would be tried in New York City. However, a backlash derailed New York as a trial venue, and then derailed the entire notion of federal court trials for Guantánamo prisoners, despite the successful prosecution and conviction of the one man the Obama administration managed to transfer from Guantánamo to the mainland, Ahmed Khalfan Ghailani. An associate of the 1998 African Embassy bombings, he was convicted in November 2010, and given a life sentence, to be served in a Supermax prison on the US mainland, in January 2011.
With the only option after Ghailani being military commission trials at Guantánamo, a version of the charade that had dominated the Bush years resumed, and to date only four prisoners — Ibrahim al-Qosi, Noor Uthman Muhammed, Omar Khadr and Majid Khan — have seen their cases proceed to trial, although in each case a plea deal was negotiated. Still outstanding are the cases of the 9/11 Five, and Abd al-Rahim al-Nashiri, the alleged mastermind of the bombing of the USS Cole in 2000. Last month the Pentagon announced that another man, Ahmed al-Darbi, tortured in “black sites” before his transfer to Guantánamo, and previously charged under President Bush, would also be charged, but that only makes eleven men in total out of the 36 recommended for trials by Obama’s Task Force.
On the eleventh anniversary of the 9/11 attacks, it is fair to wonder if justice will ever be delivered — and seen to be delivered — in the cases of these men, although arguably the situation is even bleaker for the 48 men designated as being too dangerous to release. Back in March 2011, President Obama formalized their ongoing detention without charge of trial through an executive order, but although he promised periodic reviews of their cases, no evidence has emerged to indicate that any reviews have actually taken place.
With trials delayed for most of those recommended for trials, and with the President’s decision to hold 48 men indefinitely regarded as unacceptable by human rights activists and lawyers, the only area in which progress can be made ought to be in securing the release of the 87 men cleared for release — including the 30 in “conditional detention.” However, Congress passed legislation imposing restrictions on releasing prisoners, and President Obama also capitulated to pressure following a failed bomb plot at Christmas 2009, by Umar Farouk Abdulmutallab, a Nigerian recruited in Yemen, to ban the release of any cleared Yemeni prisoners, issuing a moratorium in January 2010, bringing a halt to the release of any Yemenis in Guantánamo, which still stands two years and eight months later.
This is in spite of the fact that 58 of the 87 cleared prisoners are Yemenis, in spite of the fact that many of those men were first cleared by military review boards under President Bush between five and eight years ago, and in spite of the fact that holding them indefinitely constitutes a type of guilt by nationality that is an insult to all notions of justice, and to the Yemeni people as a whole. For the 168 men still held — those cleared but not released, those designated for trials but not tried, and those being held without charge or trial — American justice has failed them so many times that it is appropriate to conclude, on the eleventh anniversary of 9/11, that the overwhelming majority of the men are being held as political prisoners, and that ought to be a source of great sadness and shame.