[Ppnews] How Guanántamo Can be Closed

[Political Prisoner News]

http://www.counterpunch.org/worthington11202008.html

November 20, 2008


More Advice for Obama


How Guanántamo Can be Closed

By ANDY WORTHINGTON

Of the 255 prisoners currently held at 
Guantánamo, around 50 have been “approved for 
transfer” -- many for at least three years -- but 
they remain in Guantánamo, mostly imprisoned in 
conditions that would task the resilience of the 
most hardened convicted criminals on the US 
mainland, for two particular reasons. The first 
is because they are from countries with 
notoriously poor human rights records (including 
China, Libya, Syria, Tunisia and Uzbekistan) or 
unstable regimes like Iraq, and cannot be 
returned because of international treaties 
preventing the return of foreign nationals to 
countries where they face the risk of torture. 
The second reason is that the administration’s 
insistence that they are still “enemy combatants” 
(or are “no longer enemy combatants”) has 
deterred other countries from accepting them. 
Even though State Department representatives have 
been touring the world for the last three years 
in an attempt to relocate some of these men, the 
only third country that has been prevailed upon 
to accept any of them is Albania, which took eight former prisoners in 2006.

I am reliably informed that there are certain 
career officials in the State Department who have 
been anxiously awaiting a new administration, in 
the expectation that it will facilitate greater 
cooperation between the United States and its 
allies in Europe, and that some of these 
countries might now agree to help the United 
States out of the hole dug by the Bush 
administration, which regularly made matters 
worse by criticizing other countries for not 
helping out. In August 2007, for example, 
President Bush stated, “I did say it should be a 
goal of the nation to shut down Guantánamo,” but 
added, “I also made it clear that part of the 
delay was the reluctance of some nations to take 
back some of the people being held there.”

To this end, several prominent human rights and 
legal organizations -- including Amnesty 
International, Human Rights Watch and the Center 
for Constitutional Rights -- launched a campaign 
in Berlin on November 10 aimed at persuading 
European countries to accept cleared prisoners 
from Guantánamo. This is laudable, as it is 
clearly intolerable that these men remain 
imprisoned at Guantánamo (and, as it stands, 
makes Barack Obama’s pledge to close the prison 
impossible), but if the President-Elect really 
wants to do the right thing, then he should make 
the first move by allowing the 17 remaining 
Uighurs at Guantánamo (Muslims from China’s 
Xinjiang province, who had fled to Afghanistan to 
escape Chinese persecution) to settle in the United States.

The Uighurs scored a major victory this summer, 
after the Supreme Court ruled that the Guantánamo 
prisoners had constitutional habeas corpus 
rights. This ruling unlocked hundreds of habeas 
cases that had stalled in the lower courts 
following the passage of the Detainee Treatment 
Act of 2005 and the Military Commissions Act of 
2006, which purported to strip the prisoners of 
the habeas rights granted by the Supreme Court in 
2004. When the first of these cases, that of a 
Uighur prisoner called Huzaifa Parhat, was 
finally reviewed by the Court of Appeals in 
Washington D.C., the judges ruled that Parhat’s 
designation as an “enemy combatant” was invalid, 
and derided the government’s “evidence” as being 
akin to a nonsense poem by Lewis Carroll, the 
author of Alice’s Adventures in Wonderland.

In the months that followed, the cases against 
all 17 Uighurs crumbled, as the government 
admitted that it would “serve no purpose” to 
continue trying to prove that Parhat was an 
“enemy combatant,” and then did the same for his 
16 compatriots. In October, when Judge Ricardo 
Urbina of the US District Court in Washington 
D.C. held a hearing to determine what should 
happen to the Uighurs, he declared, “Because the 
Constitution prohibits indefinite detentions 
without cause, the continued detention is 
unlawful.” Furthermore, because no third country 
had been found that would accept the men, he 
ordered their release to the care of communities 
in the Washington D.C. area, and Tallahassee, 
Florida, who had put together detailed plans for 
their resettlement in the United States.

This was a proud moment for American justice, but 
the Uighurs never made it to Washington D.C. or 
Tallahassee. Instead, the government appealed, 
the Justice Department wheeled out its old and 
discredited allegations about the men being 
connected to terrorism (thereby stymieing 
attempts to find a third country to take them), 
and, in a brief filed for hearings next week, 
asserted that the executive branch “has authority 
to hold aliens in detention even if they are not 
considered enemies of the US,” adding, for good 
measure, “even if the detention is indefinite, it is still lawful.”

This is clearly an intolerable situation. As the 
only prisoners at Guantánamo who have ever 
persuaded the Bush administration to drop its 
claims that they are “enemy combatants,” the 
Uighurs deserve the lifeline extended to them by 
Judge Urbina. If the appeal goes against them, 
the new administration should make their release 
into the United States a priority.


The 80 prisoners scheduled to face trial by Military Commission

President-Elect Obama has already pledged to 
repeal the Military Commissions Act, which 
revived the Bush administration’s deeply flawed 
“terror trials” after the Supreme Court ruled 
them illegal in June 2006. This should be a 
priority after January 20, 2009, and should be 
accompanied by a thorough and independent review 
of the cases against the 80 or so prisoners 
facing (or scheduled to face) a trial by Military Commission.

What’s important to note is that the 
administration’s figure can be whittled down 
without any difficulty. Of the 17 prisoners 
currently facing trial by Military Commission, 
for example, two -- Omar Khadr and Mohamed Jawad 
-- were juveniles when they were seized, and 
should have been rehabilitated rather then 
punished under the terms of the Optional Protocol 
to the UN Convention on the Rights of the Child 
(on the involvement of children in armed 
conflict). Moreover, significant doubts have been 
expressed about the quality of the evidence 
against them, with legitimate claims made by 
their military defense attorneys (and, in Jawad’s 
case, by his former prosecutor, who resigned in 
September) that evidence vital to the defense was 
deliberately suppressed. In addition, another 
three of the 17 are minor Afghan insurgents, at 
best, who are not accused of killing US forces, 
and have no connection with al-Qaeda. All these prisoners should be released.

Others who have expressed doubts about the 
Pentagon’s figures are senior officials who spoke 
to the New York Times in 2004, when a total of 
749 prisoners had been held at Guantánamo. In 
interviews, the Times explained, “dozens of 
high-level military, intelligence and 
law-enforcement officials in the United States, 
Europe and the Middle East said that contrary to 
the repeated assertions of senior administration 
officials, none of the detainees at the United 
States Naval Base at Guantánamo Bay ranked as 
leaders or senior operatives of al-Qaeda. They 
said only a relative handful -- some put the 
number at about a dozen, others more than two 
dozen -- were sworn Qaeda members or other 
militants able to elucidate the organization's inner workings.”

To these can be added some, or perhaps the 
majority of the ten prisoners transferred to 
Guantánamo from secret CIA prisons in September 
2004, the 14 “high-value detainees” -- including 
Khalid Sheikh Mohammed and the other alleged 9/11 
conspirators -- who were transferred in September 
2006, and two of the six prisoners who arrived at 
Guantánamo between March 2007 and March 2008. 
These prisoners -- somewhere between 35 and 50 in 
total -- are the only ones who should be moved to 
the US mainland to face trials in federal courtrooms.

There will inevitably be problems -- protecting 
confidential intelligence sources, for example, 
and, in particular, dealing with evidence 
obtained through torture -- but I can see no 
other alternative. The trials as they stand are 
an abomination, permeated with systemic 
pro-prosecution bias, and capable of handing down 
a life sentence only in a one-sided show trial 
(that of Ali Hamza al-Bahlul), which passed 
largely unnoticed in the week before the Presidential election.

Holding prisoners forever without charge or trial 
is clearly an untenable solution, as it simply 
perpetuates the Bush administration’s crimes, and 
recent suggestions -- by both Democrats and 
Republicans -- that another new trial system 
should be instigated, or that a form of 
“preventive detention” should be introduced, are 
just as redolent of the arrogance of the Bush 
years, and indicate that those proposing them 
have learned nothing from the abuse of the 
Constitution over the last seven years.

In addition, one extra problem that President 
Obama may have to deal with as soon as he takes 
office concerns Salim Hamdan, the driver for 
Osama bin Laden who was convicted of material 
support for terrorism (but cleared of conspiracy) 
in a trial that took place over the summer. 
Hamdan was sentenced to five-and-a-half years’ 
imprisonment, but his judge, Navy Capt. Keith 
Allred, allowed for time served since he was 
first charged, which means that he will have 
finished serving his sentence by the end of the 
year. Allred has refused to bow to pressure from 
the Defense Department, which attempted to claim 
that he had no right to allow time served to be 
taken into account, but the Pentagon may yet 
assert that it has the right to continue holding 
Hamdan as an “enemy combatant,” even after his sentence is over.

Like the plight of the Uighurs, this is 
completely unjustifiable, as Hamdan was convicted 
by a military jury in a trial of the 
administration’s own devising, but if the 
outgoing President insists on holding Hamdan 
after his sentence is served, President Obama 
will have to ensure that he is allowed to return to his family in Yemen.


The 125 prisoners who are “too dangerous” to be released

The notion that prisoners can be “too dangerous 
to release but not guilty enough to prosecute” is 
another hallmark of the Bush administration’s 
disdain for the law, but this, too, has been 
embraced by enthusiasts for a new policy of 
“preventive detention.” The rationale is, 
however, also unjustifiable. As I hope to have 
demonstrated in my previous article, in which I 
dissected the failures of the interrogators at 
Guantánamo to distinguish between genuine 
intelligence and false confessions produced 
through the use of torture, coercion or bribery, 
there is no reason to elevate these prisoners to 
even the lowest rungs of a terrorist hierarchy, 
and every reason to follow the conclusions 
reached by senior military and intelligence 
officials: that no more than 35 to 50 of the 
prisoners had any meaningful connection with al-Qaeda.

There is, at present, some hope that these 
prisoners’ habeas reviews will demonstrate the 
weakness of the government’s evidence against 
these 125 prisoners. In the case of six Bosnians 
accused of plotting to blow up the US embassy in 
Sarajevo, for example, their habeas review began 
with the government dropping the claim (which, it 
should be noted, was dismissed by the Bosnian 
government in January 2002, before the men were 
kidnapped and sent to Guantánamo), and it seems 
probable that other cases will also see the 
government dropping its “evidence,” before the 
judges can conclude, as the appeal court judges 
did in the case of Huzaifa Parhat, that it is no 
more reliable than the nonsense poetry of Lewis Carroll.

I can only hope that the habeas reviews continue 
to force the government to drop more of its 
redundant claims against the prisoners, as my 
research has illuminated, above all, how the 
protestations of innocent men -- and of Taliban 
foot soldiers recruited to fight an inter-Muslim 
civil war that began long before 9/11 and had 
nothing to do with al-Qaeda -- have been 
overshadowed with disturbing regularity by 
allegations made by unnamed “senior figures in 
al-Qaeda,” interrogated in unknown circumstances, 
or by other prisoners who have made false 
confessions, often on a colossal scale, in the 
hope of securing more favorable treatment. Stark 
examples of both of these practices are 
available, but many more are reported in The 
Guantánamo Files, and what they demonstrate, 
above all, is how the entire “War on Terror” 
detention program, as executed at Guantánamo, was 
designed to do away with the presumption of 
innocence, and was, instead, focused solely on confirming preordained guilt.

The 125 prisoners in question are from a variety 
of nations -- a few dozen of the remaining 
Afghans, several dozen more from the countries of 
North Africa and the Gulf -- but up to half are 
from the largest remaining group at Guantánamo: 
the Yemenis. Unlike the 130 Saudis, who were 
mostly released from Guantánamo in 2006 and 2007, 
after the Saudi government instigated a 
rehabilitation program (involving religious 
retraining and support in finding wives and 
employment), which met with the approval of the 
US authorities, only 13 of the 108 Yemenis in 
Guantánamo have been released, even though they, 
like the Saudis, were, for the most part, a 
mixture of Taliban foot soldiers and humanitarian 
aid workers and missionaries, caught up in an undiscriminating dragnet.

The problem, as has been repeatedly stated, is 
that the US authorities claim that they are not 
convinced that the Yemeni government will be able 
to guarantee that the men will not continue to 
pose a threat to the United States. For their 
part, as the Houston Chronicle reported on 
Saturday, “Yemeni officials say they're ready to 
try many of the men and imprison those who are 
convicted, but they complain that US officials 
refuse to share evidence with them.” The Yemeni 
foreign minister, Abu Bakr al-Kirbi, explained, 
“Based on the information we have, some of the 
Guantánamo prisoners have nothing to do with 
terrorism. We cannot imprison them without a 
court sentence. We cannot do something that is 
against our laws. We are accountable to our own public.”

Al-Kirbi is undoubtedly right that some of the 
men pose no threat to anybody, and cannot be 
detained without reason, but to break the 
deadlock both sides need to sit down and hammer 
out a deal -- perhaps one that involves judge 
Hamoud Al-Hitar, the head of Yemen’s Dialogue 
Committee, which, as the Yemen Times reported 
last December, “aims at steering extremists away 
from violence through a number of dialogue 
sessions.” Al-Hitar’s program is widely credited 
as the inspiration for the Saudis’ successful 
rehabilitation program, and it would surely, 
therefore, make sense for the US and Yemeni 
governments to work out how to come up with a 
suitable program for Yemen that will enable Barack Obama to close Guantánamo.

Then we can move on to what lies behind 
Guantánamo: the unaccountable prisons in 
Afghanistan and Iraq, which hold an estimated 
39,000 prisoners, and the unknown number of 
prisoners still held in secret CIA custody, or 
rendered to torture in third countries, who constitute “America’s Disappeared.”

Andy Worthington is a British historian, and the 
author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
<http://www.andyworthington.co.uk/>www.andyworthington.co.uk

He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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