In Guantanamo, fine words are no substitute for freedom

When President Obama delivered a major speech on America's drone program and the ongoing existence of the Guantanamo prison, the majority of those most affected by the latter - the prisoners themselves - were, ironically, unable to hear his speech.

Until six weeks ago, the majority of prisoners were spending most of their time communally, in Camp Six of the prison, where they were able to watch TV and would have seen President Obama's speech. Six weeks ago, however, after an early morning raid, the majority of the prisoners were moved to solitary cells, where they have remained ever since - as punishment for embarking on a prison-wide hunger strike, now in its fourth month.

Yesterday, Navy Captain Robert Durand, a spokesman for the Guantánamo prison, told Reuters that the prisoners "follow all coverage of Guantánamo closely," although he conceded that only "about two dozen had unrestricted access to television in communal settings."

The irony is lost on the military - and appears to be lost on the Obama administration too. The men's decision not to eat - and to risk starving themselves to death - was initially prompted by guards manhandling the prisoners' copies of the Qur'an, but it soon tapped into a deeper despair about their indefinite detention.

President Obama promised to close Guantánamo within a year when he took office in January 2009, but met opposition from Congress, which prevented him from closing the prison by bringing prisoners to a facility on the US mainland, and also prevented him from bringing any of the men to the US to face trials.

Throughout 2009, an inter-agency task force appointed by the President reviewed all the prisoners' cases, and recommended that, of the 166 men still held, 86 should be released. However, in January 2010, following a failed bomb plot, hatched in Yemen, to blow up a plane bound for Detroit, the President himself imposed a ban on releasing any cleared Yemenis, even though 56 of the 86 prisoners cleared for release are Yemenis.

In the last two years, Congress has imposed further restrictions, in successive versions of the National Defense Authorization Act (NDAA), preventing the release of prisoners if there is a single claim that anyone previously transferred to their home country has “subsequently engaged in any terrorist activity,” and also preventing the release of prisoners to any other country unless the Secretary of Defense issues a certificate to ensure that any freed prisoner "cannot engage or re-engage in any terrorist activity.” 

The ban imposed by President Obama unjustly condemned the Yemenis to indefinite detention on the basis of their nationality alone, while the restrictions imposed by Congress partly echoed that, whilst also making the unreasonable demand that no one should be freed from a prison if there was a possibility that they might one day engage in acts of terrorism against their former jailers.

To add insult to injury, judges in the court of appeals in Washington D.C., a deeply conservative court charged with reviewing the men's hard-won habeas corpus petitions, which were granted by the Supreme Court in 2008, were upset that, between 2008 and 2010, dozens of prisoners had their habeas corpus petitions granted by the lower courts, leading to their release. The court rewrote the rules, insisting that any information presented as evidence by the government should be treated as accurate unless it could be proved otherwise. Since then no habeas petitions have been granted, and, despite appeals from the prisoners, the Supreme Court has refused to get involved.

Abandoned by all three branches of the US government, the prisoners' hunger strike was a desperate way of trying to get the world to notice them and to remember them, and it worked. In the last few months, the world's media has woken up to the horrors of Guantánamo, and the President has been bombarded with criticism - from senior lawmakers, including Sen. Carl Levin, the chair of the Senate Armed Services Committee and Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, as well as from the United Nations, the International Committee of the Red Cross, and the European Parliament. Critical editorials have graced the pages of the New York Times and the Washington Post, op-eds written by prisoners have appeared in the New York Times and the Observer, and nearly a million people have signed petitions calling for the release of prisoners and the closure of the prison.

So what now?

On Thursday President Obama delivered a series of promises in response to the criticism directed at him. These appear to show the way forward - and to bring hope to the men at Guantánamo for the first time since 2009 - but they will need close monitoring, and relentless pressure, to make sure they lead to meaningful action.

Firstly, the President said, “I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries.”

Secondly, he said, “I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis.”

Thirdly, he said, “To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries.”

On the first point, it is disappointing that the President has not decided to appoint an official within the White House to deal with Guantánamo, and it is also disappointing that the individual is only to be tasked with "the transfer of detainees to third countries" rather than the closure of the prison. However, it is progress. In January, it was revealed that the previous envoy, Daniel Fried, had been reassigned, and that no one had been appointed to take his place.

What needs to happen now is for this individual to be named as swiftly as possible, and for he or she to begin to transfer the 30 cleared prisoners who are not Yemenis. If Congress remains obstructive, the President and the Secretary of Defense must use a waiver provision that exists in the NDAA, which allows them to bypass Congress if they regard it as being “in the national security interests of the United States.”

On the second point, lifting the ban on releasing Yemenis is crucial, but there now needs to be immediate action to facilitate the men's release. Again, the waiver will be needed if Congress refuses to cooperate, but otherwise there should be no obstacles to the successful release of the 56 men. Prior to President Obama's speech, current and former administration officials told the Wall Street Journal that the transfers to Yemen “would begin slowly, starting with two or three detainees, to ensure Yemen can keep track of the detainees and prevent them from joining militant groups.” The beginning of this process, the official said, “could still be months away.”

The Wall Street Journal also noted that recent steps taken by the Yemeni government “may make it easier for the Pentagon to sign the waiver,” adding, “President Abed Rabbo Mansour Hadi’s government, which has increased counter-terrorism cooperation with the US, has pledged to monitor the detainees closely and put them through an intensive rehabilitation program.”

The Wall Street Journal also noted that “US and Yemeni officials have held negotiations in recent weeks about restarting the transfers, including promising to share information about former detainees. The Yemeni government has said multiple ministries will monitor the ex-detainees to guard against activities that are potentially threatening to the US and to ensure they receive counselling, job training and other aid to help their reintegration into society.”
On the third point, plans to free the 30 non-Yemeni prisoners cleared for release need to begin immediately, involving the President's new envoy and, if necessary, the waiver mentioned above. The first to be released should be Shaker Aamer, the last British resident in the prison, but there are also five Tunisians, a Saudi, four Afghans and others whose release should not be a complicated matter.

The cases of others - including the last three Uighurs (Muslims from China's Xinjiang province), four Syrians, the last Tajik and the last Palestinian - are more complicated, because it is unsafe for them to be repatriated, and new homes need to be found for them. This is also the case with most, if not all of the last five Algerians. The plight of these men is complicated by the fact that the US refuses to resettle any of these men, but it is anticipated that third countries can be found if the Obama administration provides full backing to the President 's new envoy.

There is more that still needs doing, of course. The 80 other prisoners in Guantánamo also need justice, and will not be reassured that the President stated in his speech, "Where appropriate, we will bring terrorists to justice in our courts and military justice system," and specifically referred to some of the 80 men as those "who we know have participated in dangerous plots or attacks, but who cannot be prosecuted - for example because the evidence against them has been compromised or is inadmissible in a court of law."

46 of the remaining 80 men were consigned to indefinite detention without charge or trial in an executive order issued by the President two years ago, on the basis of the "compromised" evidence mentioned by the President. At the time, these men were promised periodic reviews of their cases, but those have not yet taken place. These need to be initiated, and they need to allow objective analysis of that "compromised" evidence - because that will reveal that much of it is worthless, consisting of false statements made by prisoners subjected to torture or other abuse, or who were bribed with food or the promise of additional "comfort items."

For the others, recommended for trial by the task force, only seven currently face charges in the much-criticized military commissions at Guantánamo, and most of the men in this category should also receive objective reviews of their cases. This is particularly important because judges recently ruled that most of the charges relied upon by the government - providing material support for terrorism, and conspiracy - are not war crimes, and threw out two of the only convictions secured in the military commissions' stumbling history.

Mostly, however, as outlined above, the men at Guantánamo need to see meaningful progress from the President who promised "hope and change" back in 2008, and then failed to deliver it - and for 86 of these men, that means, as soon as possible, that they should be given their freedom, and not just subjected to the fine words that President Obama is so good at delivering, as a substitute for action. 

Andy Worthington for RT

Andy Worthington is a freelance investigative journalist, author and filmmaker, who has been researching and writing about Guantánamo since 2006. He is also the co-founder of the "Close Guantánamo" campaign. See his website here.

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.