As the US prison at Guantánamo Bay, Cuba begins its 15th year of operations, there has been a flurry of mainstream media interest, in part because 2016 is President Obama’s last year in office, and yet, when he was first inaugurated in January 2009, he promised to close Guantánamo within a year, an unfulfilled promise that is bound to tarnish his legacy unless he can make good on that promise in his last twelve months in office.
A major report was recently published by Reuters, which focused in particular on the ways in which the Pentagon has been obstructing the release of prisoners, as was clear from the title of the article by Charles Levinson and David Rohde: “Pentagon thwarts Obama’s effort to close Guantánamo.”
Blocking the release of 74-pound hunger striker Tariq Ba Odah
The article began with a damning revelation about Tariq Ba Odah, a Yemeni prisoner who has been on a hunger strike for seven years, and whose weight has dropped, alarmingly, to just 74 pounds (from 148 pounds on his arrival at the prison in 2002), and who is at risk of death. Ba Odah has been unsuccessful in his recent efforts to persuade a judge to order his release, but he is eligible for release anyway. Back in 2009, when President Obama established the high-level, inter-agency Guantánamo Review Task Force to assess all the prisoners’ cases, he was one of 30 Yemenis approved for release but placed in “conditional detention,” a category invented by the task force, which recommended that those placed in this category should only be freed when it was assessed — by whom, it was not explained — that the security situation in Yemen had improved.
However, as the entire US establishment has agreed that the security situation in Yemen is so grave that no Yemenis are to be repatriated, Ba Odah can be freed if a third country can be found that is prepared to offer him a new home, and to provide security assurances that are amenable to the US, like three of the 30 Yemenis placed in “conditional detention” in 2009. One was freed in the United Arab Emirates in November, and the other two were freed just days ago in Ghana, in the first of 17 planned releases from the prison in early 2016.
Nevertheless, as Reuters explained, although State Department officials invited a foreign delegation to Guantánamo in September — from a country that was not identified publicly — “to persuade the group to take … Ba Odah to their country,” these efforts were apparently thwarted by the Pentagon. As Reuters described it, “The foreign officials told the administration they would first need to review Ba Odah’s medical records.” Because of his hunger strike, they “wanted to make sure they could care for him.”
For six weeks, however, “Pentagon officials declined to release the records, citing patient privacy concerns,” and as a result the delegation “canceled its visit.” When officials then promised to provide the medical records, the delegation traveled to Guantánamo and “appeared set to take the prisoner off US hands,” as Reuters described the officials’ comments, but the Pentagon “again withheld Ba Odah’s full medical file.”
As Reuters also explained, “Multiple members of the National Security Council have intervened to demand that the Pentagon turn over his complete medical file,” but the Pentagon “has held firm,” and continues to cite patient privacy concerns.
Tariq Ba Odah’s lawyer, Omar Farah of the Center for Constitutional Rights, lambasted the Pentagon for its “baseless” claims. “Invoking privacy concerns is a shameless, transparent excuse to mask [Pentagon] intransigence,” he said, adding, “Mr. Ba Odah has provided his full, informed consent to the release of his medical records.”
A pattern of obstruction
The Reuters article proceeded to explain that, through “interviews with multiple current and former administration officials involved in the effort to close Guantánamo,” the struggle over Ba Odah’s medical records “was part of a pattern.” Since Obama became president seven years ago, the officials said, “Pentagon officials have been throwing up bureaucratic obstacles to thwart [his] plan to close Guantánamo.”
James Dobbins, the State Department special representative to Afghanistan and Pakistan from 2013 to 2014, told Reuters that “[n]egotiating prisoner releases with the Pentagon was like ‘punching a pillow.’” As he put it, DoD officials “would come to a meeting, they would not make a counter-argument,” but then “nothing would happen.” He explained that the Pentagon’s obstruction “resulted in four Afghan detainees spending an additional four years in Guantánamo after being approved for transfer.”
Officials also explained that the transfers of six prisoners to Uruguay and five to Kazakhstan (in December 2014) and of Shaker Aamer, the last British resident in Guantánamo, and Ahmed Ould Abdel Aziz, a Mauritanian (in October 2015), “were delayed for months or years by Pentagon resistance or inaction.”
In order to slow down the release of prisoners, Pentagon officials “have refused to provide photographs, complete medical records and other basic documentation to foreign governments willing to take” prisoners, according to the officials, who added that they “have made it increasingly difficult for foreign delegations to visit Guantánamo,” have “limited the time foreign officials can interview” prisoners and have “barred delegations from spending the night at Guantánamo.”
As Reuters noted, this obstruction has undoubtedly contributed significantly to the thwarting of President Obama’s intention to close Guantánamo, announced on the campaign trail in 2008, and promised on his second day in office. When he took office, there were 242 men at Guantánamo, “down from a peak of about 680 in 2003,” but today there are still 103 men held, and 44 of those, like Tariq Ba Odah, have been approved for release — 35 since 2009, and nine in the last two years via a new review process, the Periodic Review Boards.
Pentagon officials “denied any intentional effort to slow transfers,” and a White House spokesman “denied discord with the Pentagon,” but these positions were clearly at odds with the accounts given by the officials who spoke to Reuters for their report.
Tellingly, former Defense Secretary Chuck Hagel said in an interview that it was “natural for the Pentagon to be cautious on transfers that could result in detainees rejoining the fight against US forces,” as Reuters put it. “Look at where most of the casualties have come from — it’s the military,” he said.
The officials also confirmed that it was the Pentagon’s “slow pace in approving transfers” that “was a factor in President Obama’s decision to remove Hagel in February” last year. However, “amid continuing Pentagon delays,” his replacement, Ashton Carter, found himself “upbraided” by President Obama in a one-on-one meeting in September. Since then, as Reuters noted, “the Pentagon has been more cooperative” — hence the 17 men released — or scheduled to be released — January.
Nevertheless, the officials who spoke to Reuters emphasized that military officials “continue to make transfers more difficult and protracted than necessary,” and General John F. Kelly, the head of US Southern Command, which includes Guantánamo, was singled out for particular criticism. As Reuters described it, “They said that Kelly, whose son was killed fighting the Taliban in Afghanistan, opposes the president’s policy of closing Guantanamo, and that he and his command have created obstacles for visiting delegations.”
Kelly denied the claims, but this is not the first time he has faced criticism. As Spencer Ackerman noted for the Guardian in August, and as I wrote about here, in an article entitled, “Ignoring President Obama, the Pentagon Blocks Shaker Aamer’s Release from Guantánamo,” Ackerman wrote, “The well of opposition to the transfers does not end with the defense secretary. Carter is supported by the staff of the outgoing chairman of the Joint Chiefs of Staff, General Martin Dempsey, as well as the powerful General John Kelly, head of US southern command, which oversees Guantánamo.”
How President Obama failed to keep his promise to close Guantánamo
In a handy re-cap of Obama’s presidency vis-à-vis Guantánamo, Reuters explained how, on his second day in office, Obama “signed an executive order mandating an immediate review of all 242 detainees then held in Guantánamo and requiring the closure of the detention center. A year later, a task force that included the Defense Department and US intelligence agencies unanimously concluded that 156 detainees were low enough security threats to be transferred to foreign countries.”
In the meantime, however, as Reuters described it, members of Congress “seized on reports that transferred detainees had returned to the fight to demand that Guantánamo remain open.” I would add that some lawmakers wanted — and still want — to have somewhere they can hold people indefinitely without charge or trial, and without having to explain themselves at all, and that this is at least as significant an explanation for the prison remaining open as the supposed — and exaggerated — recidivism issues, which I have written about repeatedly over the years, most recently here.
Reuters cited one example of a recidivist, “Abdul Qayum Zakir, also known as ‘Mullah Zakir,’ who hid his identity from Guantánamo interrogators and became the Taliban’s top military commander after his release.” He was then “responsible for hundreds of American deaths after returning to Afghanistan,” according to David Sedney, the deputy assistant secretary of defense for Afghanistan, Pakistan and Central Asia from 2009 to 2013. However, it is important to note that he — and other dangerous Afghans released — would not have been freed if the Pentagon had sought advice from its allies in Afghanistan, which, alarmingly, it never did.
Reuters then explained how, in late 2010, “Congress passed a law requiring the secretary of defense to personally certify to Congress that a released detainee ‘cannot engage or re-engage in any terrorist activity,’” an onerous imposition that meant that releases from the prison “slowed to a trickle.” Between January 2011 and August 2013, just five prisoners were freed “under an exception to the new law that allowed court-ordered releases to bypass the newly legislated requirements,” even though 86 men at the time had been approved for release by the task force. By January 2013, as Reuters described it, “the outlook was so bleak that the State Department shuttered the office tasked with handling the closure of Guantánamo” — although it must also be noted that throughout this period,president Obama sat on his hands, unwilling to spend political capital bypassing Congress, even though a waiver in the legislation allowed him to do so.
Explaining more about this period, Michael Williams, the former State Department deputy envoy for closing Guantánamo, said that, throughout these years, William Lietzau, deputy assistant secretary of defense for detainee policy, “was not supportive of a Guantánamo closure policy” and was “an obstacle to transfers inside the Pentagon.”
Lietzau left his job in 2013, and “denied obstructing transfers,” telling Reuters that, “in many cases, delays resulted from his concerns about the ability of foreign countries to monitor transferred detainees.” As he asked “You have guys who are cleared for transfer, but there is no way to get the assurances, so what do you do then?” The answer, it must be said, should have been to not make too many demands on the prisoners’ home countries or host countries, because, after all, these were — and are — men approved for release by high-level, inter-agency review processes, whose release is only approved because it is regarded that they do not pose a sufficient threat to continue holding. However, because of the semi-permanent state of hysteria about Guantánamo, emanating from those who want it kept open, getting out of the prison has become like getting out of an ever-growing series of airlocks — one door opens, only to reveal another that is closed.
In May 2013, responding to international criticism in response to a prison-wide hunger strike — from men who despaired at ever being released, or given anything resembling justice — President Obama promised to resume releasing prisoners; or, as Reuters put it, perhaps rather rather too grandly, “unveiled a new push to close the prison.” It was certainly true that he “appointed two new envoys, one at the Pentagon and one at the State Department, to oversee the prison’s closure,” and it is fair, I think, to say that “one of their top priorities was to transfer as many prisoners as possible to countries willing to take them.” However, as both myself and the US attorney Tom Wilner, with whom I founded the “Close Guantánamo” campaign in 2012, have pointed out, if he really meant business he would have appointed someone in the White House to deal with Guantánamo’s closure.
Delays in the release of four insignificant Afghans
It was during this timeframe, as Reuters described it, that the State Department “proposed that four low-risk Afghan detainees be transferred back to Afghanistan” — Khi Ali Gul, Shawali Khan, Abdul Ghani and Mohammed Zahir, who “ranged in age from their early 40s to their early 60s.” As Reuters put it, “All had been at Guantánamo for seven years but never formally charged with a crime, and all had been cleared for release by the interagency review board years earlier.”
In Gul’s case, Reuters noted, “State Department officials argued that he was almost certainly innocent.” James Dobbins, the State Department special representative to Afghanistan and Pakistan from 2013 to 2014, said, “The consensus was that he had never had any contact with the insurgency or al Qaeda.” Moreover — and as I explained in my profiling of the four men prior to their release and afterwards — none of the four constituted any kind of a threat. As Dobbins put it eloquently and powerfully, “I can say with confidence we have captured, detained and released thousands of people who have done worse things than these four.”
This was acknowledged in discussions between the Taliban and the US in 2012 regarding a proposed prisoner swap for captured US soldier Bowe Bergdahl. As Reuters described it, “Taliban negotiators said they didn’t want the four men because the four weren’t senior Taliban members.” As Reuters also noted, “Afterwards, State Department officials began referring to them as the ‘JV four’ or ‘Junior Varsity four,’ for their seeming lack of importance to Taliban fighters.”
In summer 2013, the four Afghans were added to a list of prisoners prioritized for release, but DoD officials “resisted.” Reuters reported that, at a meeting in the Pentagon, an unnamed “mid-level Defense Department official” said that transferring the four “might be the president’s priority, but it’s not the Pentagon’s priority or the priority of the people in this building.”
Supported by the White House, however, the State Department continued making plans for the men’s release. By spring 2014, they “were about to be sent home,” but then Gen. Joseph Dunford, who, at the time, was the commander of US forces in Afghanistan, “sent a memo to the State Department warning that the release of the four detainees would endanger his troops in Afghanistan.”
With an incompetence that is all too frequent when it comes to Guantánamo, it was not until the memo reached the State Department that Gen. Dunford’s mistake was recognized. State Department officials “realized he was citing intelligence about a different group of Afghans who were more senior Taliban” — the men eventually swapped for Bergdahl in May 2014. They “pointed out the error, but it was too late. The transfer was halted.”
David Sedney, the deputy assistant secretary of defense for Afghanistan, Pakistan and Central Asia from 2009 to 2013, told Reuters “there was broad resistance within the Pentagon to releasing the four Afghans because between 30 and 50 percent of the roughly 200 Afghan detainees repatriated by the Bush administration had rejoined the fight.” By way of explanation, Sedney added, “The government of Afghan President Hamid Karzai often freed detainees as soon as they returned home.” These figures, however, are unsubstantiated, and, I believe, are quite seriously exaggerated. In addition, President Karzai often released men because there was clearly no case against them, and, had they been held at Bagram instead of Guantánamo, where largely random Afghans were only sent until November 2003, they would have been released many years before.
Finally, on December 20, 2014, the four were flown back to Afghanistan, “nearly five years after they were cleared for release,” as Reuters put it, adding, “Since then, none have returned to the fight, according to US intelligence officials.”
Reuters sought interviews with the men, but Khi Ali Gul “declined a request for an interview,” However, Mohammed Zahir, who is now in his early 60s and was “one of the three Afghans considered low-level Taliban,” according to the report, “works as a guard at a school in Kabul,” and he agreed to speak. He told Reuters that “the primary evidence against him — Taliban documents found in his home — were from his work as an administrator in the Intelligence Ministry when the Taliban ruled Afghanistan.”
He added a poignant anecdote, explaining that, when US soldiers flew home with him, one “spoke with him briefly before handing him over to Afghan officials,” as Reuters put it. In Zahir’s words: “The American soldier tapped on my shoulder and said, ‘I am sorry.’ I don’t know why they kept me there for 13 long years without proving my guilt or crime.”
Delays in the release of five men to Kazakhstan
Reuters’ report also explained how “Pentagon obstacles delayed and nearly derailed other transfers.” In early 2014, Kazakhstan President Nursultan Nazarbayev “offered to take as many as eight Guantánamo detainees.” As Reuters described it, “eager for a counterweight to an increasingly assertive Russia,” he “hoped to strengthen his relationship with Washington.”
Kazakh officials then “asked to send a delegation to Guantánamo for three days to videotape interviews with prisoners before deciding which ones to accept,” a perfectly reasonable request. As was also noted, Kazakh psychologists and intelligence experts “wanted to study the interviews for signs of deception.”
However, according to “multiple current and former administration officials,” Pentagon officials “forbade the delegation to videotape the interviews, nixed plans for a multi-day visit, ordered detainee interviews shortened, and put new restrictive classifications on documents” requested by the Kazakh authorities.
Senior commanders in Joint Task Force Guantánamo, which runs the prison, said the visiting officials “would be allowed one hour with each prisoner and one day at the detention centre.” Reuters noted that “[a]llowing taped interviews had been common practice with foreign delegations,” but with the Kazakh delegation Tthe Pentagon “banned them on the grounds that the practice would violate the Geneva Conventions’ prohibition on using prisoners of war for ‘public curiosity,’” which was not only obstructive, but also both pompous and hypocritical, considering the extent to which the prisoners’ rights have generally been ignored over the last 14 years.
Reuters added that, after “two weeks of failed talks,” the Kazakh authorities “said they were canceling the visit and wouldn’t take any detainees,” at which point an “alarmed White House intervened, ordering the Pentagon to compromise,” as officials described it.
The compromise allowed the delegation “two hours with each detainee,” and, in addition, they “would be allowed to stay one night at Guantánamo.” They “would not be allowed to bring recording equipment with them,” but the military “agreed to videotape the interviews and provide [them] with copies of the tapes.”
The visit went ahead, but six weeks later the Kazakh authorities hadn’t received the videos. An official said, “They were calling us every couple of days, saying, ‘Where are the videos?’”
Again, the White House intervened, ordering the Pentagon to hand over the videos, but although the Pentagon complied, and sent the videos to the State Department, they had been classified “Secret/ NOFORN,” meaning that it was “illegal to share the material with a foreign country.” Obama’s officials complained again, and the videos were then reclassified. However, when the Kazakh authorities received them, they rang to complain. “The video,” as Reuters put it, “had been processed to look as if it had been shot through dimpled glass,” and because they “wanted to scrutinize detainees’ body language and facial expressions,” it was “useless.”
White House officials then intervened for a third time to demand a compromise, and finally, last December, almost a year after the process of transferring the men out of Guantánamo began, the five men were flown to Kazakhstan.
Other delays — and obstruction in the release of Shaker Aamer
Reuters also explained how, this fall, a foreign government “was invited to Guantánamo to interview eight detainees for possible transfer, ” noting, as described above, that this is “a process that can take several days.” However, according to Obama administration officials, General Kelly “instituted a new policy, suddenly banning the delegation from spending the night” at the prison. As a result, the delegation, from an unidentified country, “was forced to commute 90 minutes by plane each morning and afternoon from Miami, adding tens of thousands of dollars in government plane bills to US taxpayers.”
More disturbing, however, is the blunt conclusion to this anecdote, like the one about Tariq Ba Odah at the start of this article. “In December,” Reuters wrote, “the country decided to take no detainees.”
It was also noted that, during a visit in the fall by another foreign delegation, “Kelly’s command further cut interview times with detainees, to as little as 45 minutes each, making it harder for foreign officials to assess potential transfers.”
The final accounts concern Shaker Aamer, for whose release I have spent many years campaigning, including, from November 2014, through the We Stand With Shaker campaign that I established with the activist Joanne MacInnes, which used a giant inflatable figure of Shaker — and extensive support from celebrities and MPs — to raise awareness of, and outrage about his continued imprisonment, despite the face that he was approved for release in 2007 and 2009. He was finally freed on October 30 last year.
After noting that, in private meetings, “some Pentagon officials have been dismissive of Obama’s policy” — of releasing prisoners and moving towards closing the prison — Reuters reported that, in January last year, after the president “publicly pledged” to “respond to a five-year-old British request for the repatriation” of Shaker Aamer, “a senior Pentagon official mocked that vow at an interagency meeting on transfers.”
According to an administration official who was present at the meeting, the Pentagon official said, “We will prioritize him — right at the back of the line where he belongs,” to which a senior National Security Council official replied, “That’s not what the president meant.”
For many years, I have explained that one of the many grave injustices of Guantánamo is that, because the release of any prisoner is a political process, it is far too easy to continue holding anyone perceived as troublesome, like Shaker Aamer, who speaks with extraordinary eloquence about the torture and injustice of the “war on terror,” by shunting them to the back of the queue of prisoners approved for release.
I didn’t expect to have my thoughts so perfectly echoed by a senior Pentagon official, but in proving me right, this official has certainly confirmed that justice has no place in Guantánamo, where, instead, those held are political prisoners, or, as Shaker himself describes them, hostages.
Note: See here for a discussion of Reuters’ report, with Charles Levinson and Omar Farah, on Democracy Now! and also check out this New York Times editorial, in which the editors note, “Pentagon officials can do a lot to thwart releases during Mr. Obama’s last year in office. He can make that less likely by empowering a senior official to set clear goals and deadlines, and order defense officials to meet them.” As Tom Wilner and I said in 2013, appointing someone to oversee the closure of Guantánamo in the White House would be the most constructive way for the president to try to fulfill his as yet unfulfilled seven year promise to close the prison.