116
Guantánamo Prisoners Cleared For Release; 171 Still In
Limbo
17 December 2009By Andy Worthington
In the first detailed announcement about prisoners
cleared for release from Guantánamo since September
28, when a military spokesman announced that a list of
78 cleared prisoners had been posted in the prison,
defense secretary Robert Gates told a Senate hearing
last Thursday that officials were "in the process of
identifying detainees that we believe can be
transferred to other countries" and "we've identified
I think 116 at this point."
This is certainly progress on the part of the
administration, as it continues to work out how to
close Guantánamo. Since the last announcement, senior
officials have also made decisions about who to put
forward for trial, announcing on November 13 that five
men — including Khalid Sheikh Mohammed — will face
federal court trials for their alleged involvement in
the 9/11 attacks, and another five will be put forward
for trial by Military Commission. Officials also
briefed journalists that the number of prisoners
expected to face any kind of trial would not exceed
40.Based on the current population of Guantánamo (211
prisoners), this means that, deducting the 116
prisoners cleared for release and those scheduled to
face trials, just 55 men remain in the most
contentious category of all: those who will not face a
trial, but who are not scheduled to be released
either.
Back in May, cowed by attacks from ranting Republicans
and cowardly members of his own party, President Obama
first began to waver dreadfully on Guantánamo, and not
only proposed reviving the much-criticized Military
Commissions as a parallel (or second-tier) judicial
system for the prisoners, but also, to what should be
his eternal shame, explained his intention to continue
to hold some prisoners without charge or trial. In a
major national security speech, he described these
prisoners as those who "cannot be prosecuted yet who
pose a clear danger to the American people,"
apparently oblivious to the fact that, by doing so,
the administration was ignoring an inconvenient truth;
namely, that, if senior officials find themselves
unable to prosecute someone in Guantánamo, it is
because the information they are using does not rise
to the level of evidence, or is otherwise tainted by
torture, and is therefore inherently unreliable.
As commentators, human rights groups and lawyers tore
into Obama for even considering enshrining "preventive
detention" in law, following his national security
speech, another sub-text also eluded the
administration: that officials were only proposing
legislation that would, in effect, justify the Bush
administration' s central conceit of the "War on
Terror," as a by-product of their difficulties in
deciding whether to charge or release prisoners whose
predicament had arisen solely because of the Bush
administration' s disregard for the law in the first
place.By September, government officials acknowledged
that the President would not need to seek legislation
to establish a new system of preventive detention for
those held in Guantánamo, because existing legislation
already allowed the administration to hold prisoners
indefinitely.
As I explained at the time:In dropping plans for new
legislation … the administration has realized that it
can continue to hold prisoners based on the
Authorization for Use of Military Force, the
Congressional resolution passed the week after the
9/11 attacks, which authorizes the President "to
detain persons who he determines planned, authorized,
committed, or aided the terrorist attacks that
occurred on September 11, 2001, and persons who
harbored those responsible" for the attacks.
This is by no means perfect, of course. As the [New
York] Times noted, "In concluding that it does not
need specific permission from Congress to hold
detainees without charges, the Obama administration is
adopting one of the arguments advanced by the Bush
administration in years of debates about detention
policies," although it added, accurately, that the
President's advisers "are not embracing the more
disputed Bush contention that the president has
inherent power under the Constitution to detain
terrorism suspects indefinitely regardless of
Congress." As the Justice Department explained in a
statement, the administration will "rely on authority
already provided by Congress" under the AUMF, and "is
not currently seeking additional authorization. "
Quite why it took the administration so long to
realize this is beyond me, although perhaps it is tied
in with the Democrats' incessant desire to want to
appear tough on national security issues. However, it
should have been apparent all along, just as it should
also have been apparent that, if the administration
feared criticism, all it had to do was to leave it to
the District Court judges who were ruling on the
prisoners' habeas corpus petitions courts to decide
whether those held at Guantánamo met the AUMF's
threshold for detention.
Since June 2008, when the Supreme Court granted the
prisoners constitutionally guaranteed habeas corpus
rights, District Court judges have been examining the
government's evidence and, in 31 of the 39 cases in
which they have reached a ruling, have concluded that
the government has failed to establish, by a
preponderance of the evidence, that these men were
involved with al-Qaeda or the Taliban.Of the 55
prisoners that the administration currently fears
releasing, despite lacking the evidence to put them
forward for a trial, eight are those who lost their
habeas corpus petitions, and it would, therefore, make
sense for the administration to allow the other 47
cases to proceed, secure in the knowledge that,
whatever the outcome, the government can blame the
courts, rather than accept responsibility itself.
This is no comfort to those who have already lost
their habeas petitions, as they are waiting for a new
conversation to begin, which, at present, shows no
sign of starting up. This, in essence, involves asking
whether it is justifiable that the AUMF, which fails
to distinguish between al-Qaeda (a terrorist group)
and the Taliban (the government of Afghanistan at the
time of the US-led invasion in October 2001), can
legitimately be used to endorse the indefinite
detention of those who may have done nothing more than
cook for Arab forces supporting the Taliban, or attend
a military training camp in Afghanistan for one day
only.
It seems to me that the answer may well be that the
AUMF needs to be abandoned, as it is effectively the
mechanism that was used to establish Guantánamo in the
first place, and that, instead, those responsible for
directing US policy need to decide whether those held
at Guantánamo who have lost their habeas petitions
were soldiers (in which case they should be held as
prisoners of war, with the protections of the Geneva
Conventions) or terrorists, who should face trials.
At present, however, these are nothing more than
thoughts for the future. Right now, the administration
needs to reconcile itself to the fact that the only
way of dealing with the 47 prisoners about whom it has
unverifiable doubts is to let judges test the basis of
their detention, as ordered by the Supreme Court 18
months ago, especially as, on that occasion, the
justices made a point of stressing that "[T]he cost of
delay can no longer be borne by those who are held in
custody. The detainees in these cases are entitled to
a prompt habeas corpus hearing."
When it comes to the 116 men who have now been cleared
for release from Guantánamo, the administration needs
to do more than just send Robert Gates to the Senate
to make announcements that sound as though they mean
something. Since May, when President Obama personally
dropped a plan, engineered by his counsel, Greg Craig,
to bring two cleared prisoners from Guantánamo to
settle on the US mainland (as ordered by a District
Court judge in October 2008), the struggle to close
Guantánamo has become noticeably harder, as European
countries, pushed to take cleared prisoners
themselves, have found themselves unable to resist
asking why they are being obliged to clean up
America's mess when America is doing nothing itself.
Being cleared for release means nothing if you remain
locked up in Guantánamo forever, and unless the
administration has some significant plan up its
sleeve, the future of these men is bleak. Since the
announcement of the number of cleared prisoners two
months ago, it is almost certain that many of the
additional prisoners cleared prisoners are Yemenis (as
around 95 of the remaining 211 prisoners are Yemeni),
so perhaps it is worth reading something into Robert
Gates' refusal to back up the President's recent
admission that Guantánamo will not close by the
self-imposed deadline of January 22, 2010, when he
told the Senate hearing last Thursday that the
President "has every intention of doing this and we
will," and explained, "Principally the logistics of it
have proven to be more complicated (than expected)."
A deal on the repatriation of the Yemenis — of whom, I
suspect, between 50 and 60 have now been cleared for
release — would certainly help fulfill Barack Obama's
ailing promise, and may have been hinted at by Robert
Gates. However, I still think that any decent person's
demand — that men cleared for release after their long
ordeal should not be held one minute longer than
necessary — will not be achieved until the people of
the United States accept that it is not enough for
Belgium, Bermuda, France, Hungary, Ireland, Palau and
Portugal to take the odd cleared prisoner as a favor
to President Obama, and for the US to do nothing.
As a result, Congress must be persuaded to drop its
opposition to the release of any cleared prisoner into
the US (which has complicated the closure of
Guantánamo still further), and the American people
need to follow the example of the town of Amherst,
Massachusetts, which recently voted to accept two
prisoners from Guantánamo, and also to tell Congress
to drop its ban. The principle is quite simple, and
generally well understood, I believe: if you break it,
you fix it.
As published exclusively on the website of the Future
of Freedom Foundation (as "Cleared for Release and
Still in Limbo").
Andy Worthington is the author of The Guantánamo
Files: The Stories of the 774 Detainees in America's
Illegal Prison (published by Pluto Press, distributed
by Macmillan in the US, and available from Amazon
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