With a stunning lack of sensitivity, President Barack Obama's Guantánamo Review Task Force chose the anniversary of the president's failed promise to close the prison to announce its conclusions regarding the eventual fate of 196 prisoners.
As the Washington Post explained, the Task Force said, with no trace of irony, that "nearly 50" of the men still imprisoned at Guantanamo "should be held indefinitely without trial under the laws of war."
The administration's invocation of the laws of war actually refers to the Authorization for Use of Military Force (AUMF), passed by Congress in the wake of the 9/11 terrorist attacks, which authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001" (or those who harbored them), as interpreted by the Supreme Court in June 2004, in Hamdi v. Rumsfeld, in which it was asserted that "Congress has clearly and unmistakably authorized detention" of individuals covered by the AUMF.
This may technically be legal in the United States, but it is at odds with everyone else's understanding of the laws of war. As every other civilized country understands them, the laws of war involve holding combatants for the duration of hostilities according to the Geneva Conventions, which, under Common Article 3, prohibits the "humiliating and degrading treatment" and coercive interrogations to which the men in Guantánamo were subjected, after President Bush declared in February 2002 that the Geneva Conventions did not apply to al-Qaeda or the Taliban.
Moreover, these men were never screened to ascertain whether they were actually combatants in the first place. Under Article 5 of the Third Geneva Convention (relative to the treatment of prisoners of war), if there is any doubt about whether those detained fit the description of Article 4 (broadly speaking, regular armed forces), they should be treated as Article 4 prisoners until their status has been determined by a competent tribunal. Held close to the time and place of capture, these were convened in every U.S. war from Vietnam onwards, and in the first Gulf War, for example, 1,196 tribunals were held, and 886 men were subsequently released.
However, competent tribunals were not held in Afghanistan (and are still not held to this day, under President Obama), and irregular soldiers (such as those fighting for the Taliban, or military forces related to al-Qaeda who were supporting the Taliban) slipped through the cracks of the protections assured to everyone detained in wartime, whether combatant or civilian, and were labeled as "unlawful enemy combatants," who, according to the Bush administration, could be deprived of all rights.
This was nonsense, as the International Committee of the Red Cross confirmed in 1958 in a commentary on the Fourth Convention (relative to the treatment of civilians) that "Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or … a member of the medical personnel of the armed forces who is covered by the First Convention." Moreover, "There is no intermediate status; nobody in enemy hands can be outside the law."
This interpretation was reinforced by the International Criminal Tribunal for the Former Yugoslavia in a judgment in 1998, but in the "war on terror," the result of the Bush administration's cynical maneuvering was Guantánamo, a prison in which men who had never been adequately screened were presumed to be guilty, even though, in most cases, the authorities knew nothing about them, largely because 86 percent of them had not been seized "on the battlefield," as senior officials claimed, but had been sold to the U.S. military by their Afghan and Pakistani allies, at a time when bounty payments, averaging $5,000 a head, were being paid for al-Qaeda and Taliban suspects.
As a result, the Obama administration's justification for holding 50 men indefinitely without charge or trial reinforces the Bush administration's false claim that there is a category of wartime prisoner who can be held indefinitely (as opposed to being held as a prisoner of war until the end of hostilities). What makes this conclusion even more unnerving is that the justification for holding these men indefinitely is evidence that, by President Obama's own admission, is "tainted" by the use of torture.
In a major national security speech in May, when he first signaled that he was reviving the Bush administration's justification for holding men indefinitely without charge or trial, he referred to prisoners who "cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States."
To its credit, the administration has belatedly acknowledged that the decision regarding whether or not to hold these men is not the exclusive province of the executive branch. As the Post explained, officials stated that "each detainee has the right to challenge his incarceration in habeas corpus proceedings in federal court." This is a welcome acknowledgment, as the courts' role, mandated by an enormously significant Supreme Court ruling in June 2008, has been noticeably sidelined by the administration, even though, in the last 16 months, District Court judges have ruled, in 32 out of 41 cases, that the government's supposed evidence – largely derived from the prisoners themselves, or from their fellow prisoners – is so "tainted" as to be useless and unbelievable.
Judges have also taken exception to the President's hidden sub-text – that other compelling evidence has come from the intelligence agencies – noting, on several occasions, that the "mosaics" of intelligence put forward to justify detention may be useful in terms of gathering intelligence, but fail to stand up to scrutiny in a court of law.
No indication has yet been provided as to the identities of the 50 men that the Task Force advocates holding indefinitely, but it is a safe bet that one is Fayiz al-Kandari, a Kuwaiti (profiled on Truthout last October), who has always maintained that he was a humanitarian aid worker, caught up in the post-invasion chaos of Afghanistan.
Noticeably, al-Kandari has been persistently uncooperative with the interrogators in Guantánamo, and has refused to implicate himself in any terrorist-related activities.
But according to the authorities, in a version of reality concocted almost exclusively from multiple levels of hearsay provided by other prisoners, while in Afghanistan, between August and December 2001 he managed not only to visit the al-Farouq training camp (the main training camp for Arabs in the years before 9/11), but also provided instruction to al-Qaeda members and trainees, to serve as an adviser to Osama bin Laden, and to produce recruitment audio and videotapes which encouraged membership in al-Qaeda and participation in jihad.
Al-Kandari is one of the men whose only hope now is that a District Court judge will see through the authorities' flimsy case against him, but for those seeking justice for genuine terrorists (or those, at least, against whom something resembling real evidence exists), the news from the Task Force is at least more encouraging. As the Post explained, the Task Force has recommended that "about 35 prisoners should be prosecuted in federal or military courts."
Without the distraction of the 50 supposedly dangerous men who can be held indefinitely without evidence, this figure rather comprehensively demonstrates the colossal failure rate of the Bush administration's experiment at Guantánamo: of the 779 men held, just under 5 percent are to face trials. If anything demonstrates that doing away with establishing safeguards in wartime and establishing guilt through arrogant presumption is a disastrous idea, it should be this statistic.
Making up the rest of the 95 percent of Guantánamo's prisoners who should never have been detained are "at least 110 detainees" who have been cleared for release. As the Post explained, the Task Force "deemed approximately 80 detainees, including about 30 Yemenis, eligible for immediate repatriation or resettlement in a third country. About 30 other Yemenis were placed in a category of their own, with their release contingent upon dramatically stabilized conditions in their home country."
This is another swipe at the chaos of the Bush administration's policies, of course, as the figure of 110 can be added to the 44 prisoners already released by Obama, but it is not without its problems. The Post tiptoed around Obama's cowardly refusal to release any cleared Yemenis for the foreseeable future, in the face of unprincipled attacks from Republicans and member of his own party, who attempted to equate the cleared Yemenis with the failed Christmas Day plane bomber.
Umar Farouk Abdulmutallab had apparently been in contact with an al-Qaeda-inspired group in Yemen that included Saudi ex-prisoners released by George W. Bush, despite warnings from the intelligence services that they were among the handful of dangerous men in Guantánamo, but in the hysteria that recently prevailed, the cleared Yemenis were sacrificed for political gain.
The unadorned figures also fail to reveal that, of the 50 men from other countries, the majority cannot be repatriated because of fears that they will be tortured on their return.
On the anniversary of President Obama's failure to close Guantánamo – and also to fully repudiate the Bush administration's vile policies – the plight of these men should not be overlooked. Although the Post noted that the administration "anticipates that about 20 detainees can be repatriated by this summer," and "has received firm commitments from countries willing to settle an additional 25 detainees who have been cleared for release," experiences this year have indicated that other countries are reluctant to provide new homes for these men when the United States has washed its hands of them.
The blame for refusing to allow any cleared prisoner to settle in the United States, if they cannot be repatriated, lies with the president, with lawmakers, with the Justice Department and judges in the Court of Appeals and numerous media outlets.
But its impact not only continues to sour relations with other countries asked to do America's dirty work, it also threatens to leave innocent men stranded in Guantánamo for an undefined amount of time. Back in October 2008, when Judge Ricardo Urbina ruled that 17 men from China (the Uighurs), who had won their habeas petitions, had to be rehoused in the United States because they could not be repatriated, and because no other country and been found that would take them, he explained that their continued detention was unconstitutional.
Fifteen months later, Judge Urbina's words still ring true, as they may on this day next year, when some of these men may still be held in Guantánamo unless America accepts responsibility for its own mistakes.