During his election campaign of 2008, US President Barack Obama made a solemn promise to the American people ‒ to close the detention centre at Guantanamo Bay, Cuba within his first year of office. Since opening in January 2002, Guantanamo had been embroiled in controversy with pervasive reports of mistreatment and torture of inmates, detention of prisoners with no affiliation to al-Qaeda or any other terrorist group, indefinite detention without trial, suicides and the holding of minors.
Once elected, Obama’s promise dissipated, facilitated in part by ambivalence from the American people, who were still recovering from the aftermath of the September 11th terrorist attacks, but largely due to a recalcitrant Congress, intent on blocking any moves to transfer prisoners off the site. It consistently thwarted Obama’s plans for closing Guantanamo, making it extremely difficult to repatriate or relocate prisoners who had in fact been cleared for transfer. Congress also ruled out the transfer of detainees to US soil, despite Obama’s objections that so-called ‘high value’ prisoners should be brought before a civilian court and afforded due process.
In 2011, Congress mandated that detainees could only be transferred out of Guantanamo if the Secretary of Defense certified they would not engage in terrorism upon release ‒ a seemingly impossible demand. Congress last year afforded the president the authority to waive the certification requirement but in effect this had its own restrictions as, for example, the waiver could not be used in the transfer of detainees to countries on the State Department’s list of states sponsoring terrorism.
Though in 2012 Obama reportedly admitted he could have done more for Guantanamo, he nevertheless went on to declare: “No one is going to persuade me that we should run a penal colony in perpetuity in America”.
The turning point, both politically and in terms of public perception, came perhaps when the cost of detaining prisoners at Guantanamo was revealed by Defense Secretary Chuck Hagel last year: yearly operating costs of $454 million, or approximately $2.7 million per inmate. By comparison, it was noted by one senator that detention per inmate at a federal, high-security prison costs $72,000 per year.
In November of last year, on the twelfth anniversary of its instigation, a letter was sent to all US Senators, from thirty-eight retired generals and admirals – imploring Congress to shut Guantanamo down, describing it as as a “symbol of torture”, and a “betrayal of American values”. The following month, the US General who opened Guantanamo, Marine Major General Michael Lehnert, wrote in the Detroit Free Press that Guantanamo was a mistake and should be shut down because “it validates every negative perception of the United States”.
In December 2013, Obama signed the National Defense Authorization Act, which finally makes it easier to transfer detainees to other countries, though transferring any prisoner to US soil is still prohibited. Though praising Congress for allowing the concession, Obama criticised it for enacting “unwarranted and burdensome restrictions” in the past, that had hindered his ability to transfer detainees to US Soil where they could be tried and prosecuted in civilian courts.
December 2013 saw prisoners sent home to Algeria, Saudi Arabia and Sudan, and the resettlement of three long-detained Uighur captives, whose release a judge had ordered in 2008. According to the New York Times, leaked dossiers for the three Uighur detainees showed that, at least as early as 2003, the military had determined they were “not affiliated with al-Qaeda or a Taliban leader” and should be released. There are currently 155 detainees remaining at Guantanamo; of those, 76 have been approved for transfer, security conditions permitting. Many have been detained without charge for over ten years.
The Guantanamo Bay detention camp opened on January 11th 2002 to detain, interrogate and prosecute what then Secretary of Defense Donald Rumsfeld termed “the worst of the worst” ‒ mostly prisoners from Afghanistan, who had been captured during President George W Bush’s ‘War on Terror’. After the September 11th attacks, the political imperative was to bring the conspirators and terrorists to justice and to protect America from further attacks at all costs.
It was asserted by the Bush administration, on legal advice, that Guantanamo ‒ on non-US soil ‒ could be considered outside US legal jurisdiction; it was also claimed by the administration that detainees would not be entitled to any protections under the Geneva Conventions. On this premise, the fate of Guantanamo had been sealed, allowing as it did the gross mistreatment and torture of prisoners ‒ with absolute impunity. It wasn’t until a Supreme Court decision in 2006 that it was ruled that detainees should in fact be afforded minimal protections listed under Common Article 3 of the Geneva Conventions.
Rather than housing the 9/11 masterminds and terrorists as claimed, it soon became apparent that the detainee population within Guantanamo was a combination of innocent civilians, Taliban footsoldiers and a relatively small number of ‘high-value’ suspected al-Qaeda terrorists. Also held in Guantanamo were an estimated 17 to 22 minors: ‘juvenile enemy combatants’ ‒ a status not recognised under international law. These ‘combatants’ ranged in age from 13 to 17 years.
Wikileaks’ ‘Guantanamo Files’, containing classified documents dating from 2002 to 2008 further alleged that during the invasion of Afghanistan, al-Qaeda and Taliban ‘suspects’ were sold to US forces by Afghan and Pakistani allies. The US allegedly paid bounties of $5,000 per prisoner, with leaflets widely distributed emblazoned with the undiscriminating offer.
After the September 11th attacks, the CIA and Department of Defense employed new methods of interrogation sanctioned by the Bush administration. Termed ‘Enhanced Interrogation Techniques’, this was a euphemism for torture. They included: waterboarding, sleep deprivation, hypothermia, 20-hour interrogations, controlled fear (with dogs) and sexual assault/humiliation. In 2002, the Bush Administration told the CIA that unless the intent was to inflict pain or suffering, then it was not torture.
Inexplicably, the arrogance of both the administration and the military in the abuses inflicted on Guantanamo detainees led, quite ironically, to a situation where even those inmates considered ‘high value’ or whom it was believed had direct involvement in 9/11 could not be prosecuted, as significant parts of their confessions had been imparted under torture.
One example, Mohammed al-Qahtani ‒ a Saudi citizen and so-called ‘20th hijacker’ of September 11th, allegedly tried to enter the United States to take part in the terrorist attacks but was denied entry. Susan Crawford, a retired judge who had been appointed Convening Authority of the Guantanamo Military Commissions, refused to prosecute al-Qahtani when he was charged on numerous counts pertaining to the September 11th attacks. She told the Washington Post in January 2009 that this was because he had been so badly tortured at Guantanamo by sleep-deprivation, hypothermia and isolation that he was in a “life-threatening condition”.
All charges against al-Qahtani were dropped in January 2009 and a member of the Bush administration admitted for the first time that torture was being used at Guantanamo. In Guantanamo’s twelve year history, eight men have died in the prison, with the Department of Defense claiming six of these as suicides.
In January 2009, President Obama signed an executive order instructing the CIA to only use methods listed in the Army Field Manual when carrying out interrogations. The Guantanamo Review Task Force ‒ established that same month to review the 241 prisoners still held there when Obama took office ‒ concluded that only 36 detainees could be prosecuted.
The final report of the Guantanamo Review Task Force in January 2010 recommended releasing 126 current detainees to their homes or a third country, 36 to be prosecuted by federal court or military commission and 48 to be held indefinitely. Also, 30 Yemenis were approved for release if conditions in their country improved.
This year brings at least some hope for Guantanamo; the passing of the 2014 National Defense Authorization Act means detainees will finally be repatriated or transferred to a third country. It may be quite some time before Guantanamo closes. Although the majority of detainees have been cleared for transfer, there are still other obstacles, particularly in the case of the Yemeni prisoners, who cannot be repatriated until conditions in their home country stabilise.
For the others, the minority ‘high value’ detainees ‒ tortured innocents or 9/11 conspirators ‒ the future is far less certain. Deemed too dangerous to release, and now impossible to prosecute, they remain in political, and legal, limbo. Obama will no doubt endeavour to finally make good on his promise and close the camp before his second term ends in January 2017, but for the ‘uncleared’ Guantanamo detainees, guilty or not, their status ‒ and future ‒ remains decidedly bleak.
Ken Phelan
