Four years ago on the second day of the brand new Obama administration, the president signed an executive order to close the prison at Guantanamo Bay within one year. The news was received eagerly by human rights advocates expecting a clean break with the Bush years.
Yet with Barack Obama’s second term barely begun, the State Department announced this month that it was closing the office of Daniel Fried, special envoy for closing Guantanamo.
At a news conference on the day after the announcement, Senate Majority Leader Harry Reid (D., Nev.) said it was “nobody’s fault” that Guantanamo was still open. Senate Majority Whip Dick Durbin (D., Ill.) blamed Congress when he told reporters, “He [Obama] didn’t have the votes. The president saw that. I think he measured it properly and said we need to move on.”
When it’s “nobody’s fault,” it’s not polite to ask questions. Move on, the Democratic leadership tells us. The nation is to “move on” even as 166 men still sit in the prison at Guantanamo 11 years after its creation. Fully 157 of them have never been charged with a crime. Eighty six of them have been cleared for release by every military, law enforcement, and intelligence agency with a stake in Guantánamo, many of them several times over the long years of their imprisonment.
Among them are 55 Yemenis who are cleared yet continue to be held solely on the basis of their citizenship after Obama ordered a moratorium on any releases to Yemen after the Christmas, 2009, “underwear bomber” was said to have been recruited in that country.
A systemic failure of faith
It wasn’t supposed to work out this way. Obama supporters have told me on many an occasion, “Wait until he’s re-elected.” Then Obama can be Obama, unconstrained by campaign considerations.
But now he’s "moving on," and we’re along for the ride.
Esquire writer Charles Pierce called the news about the office closing “infuriating,” but he insisted the blame goes deeper than anything the president or Congress has failed to do. He writes that these failures are:
“…only part of a systemic failure of faith in the institutions that we feel safe in bragging about to the world, but not in allowing them to work the way they're supposed to work here. The institutions failed because the politicians failed, and the politicians failed because we let them. The prison is still open because, fundamentally, and in the only way open to us, we as a nation expressed a desire that it stay open. Period.”
We speak proudly of the democratic institutions we want to export to the rest of the world. Yet we apparently don’t trust these institutions to do their work here at home. George Bush and his advisers labored hard to create a system outside the reach of the law, and now in 2013 we move on and leave the lawless structures intact.
Although we haven’t imported the prison facility to our soil, we have imported its policy: indefinite detention without charge or trial, arbitrary imprisonment. Having become accustomed to its use in Guantanamo, Congress wrote the practice into the law of the land in the National Defense Authorization Act (NDAA) of 2012, extending its potential use to anywhere in the world, even our own soil and our own citizens. The president signed the bill into law. Last month he again signed the 2013 version with much the same provisions. Whether or not Guantanamo closes, indefinite detention is still open for business.
The bill contained provisions that make it very difficult to resettle prisoners or bring them to the United States even for prosecution. Legislators had bowed to the perceived fears of their constituents when they inserted these provisions. Obama had threatened a veto, but the final version of the bill retained the provisions and Obama signed it anyway.
Bounties and the ‘worst of the worst’
Many Americans still perceive all the prisoners at Guantanamo to be the “worst of the worst” as Secretary of Defense Donald Rumsfeld labeled them in 2002. Rumsfeld and Vice President Dick Cheney continued to propagate the notion even after they learned it was not true for the vast majority of prisoners.
Only 5 percent of the detainees were captured by U.S. forces. Eighty six percent were arrested far from the battlefield by Pakistan or the Northern Alliance and turned over to U.S. forces at a time when the United States offered large bounties. Leaflets dropped over the impoverished mountainous region between Afghanistan and Pakistan carried a message offering villagers “enough money to take care of your family, your village, your tribe for the rest of your life.” The bounties provided temptation to turn over enemies of the local warlord or strangers fleeing the bombs falling in Afghanistan.
Ordinarily in time of war, captives are held close to the point of capture until they can be screened, but this time all the prisoners were ordered transferred thousands of miles away to Guantanamo Bay, without regard to evidence. Of the 779 men who were sent there, the youngest was 13 years old and the oldest was 98.
Even now President Obama has the power to release Shaker Aamer, a United Kingdom resident who has been held at Guantanamo for nearly 11 years without charge. The U.K. is considered a secure country that meets the requirements Congress inserted into the NDAA for release of detainees. Moreover, the U.K. government has asked for Aamer’s return.
Aamer took his British wife and his children to Afghanistan in June, 2001, to do work for a charity in Kabul. After the charity was bombed in the opening days of the Afghanistan War, he fled the city with his family. He was searching for a more secure location when he was picked up by bounty hunters. His wife described what happened:
“The bombs were falling every night and we had to leave the city to stay in a village. The children were terrified and kept telling us to be quiet in case our noise made the bombs come. Shaker was frightened too and I can remember his face now, it was almost as pale as the colour of the cream suit he was wearing. Shaker left the village to find a safer place for us. But in the middle of the night the villagers told us we had to go with a group travelling to the safety of Pakistan. I was pregnant with our fourth child and we were all scared. In the end, I just went. I didn’t see Shaker again. Sometimes I regret that decision. What if I stayed — would we all be together now?”
And what of the men who may indeed have committed serious crimes? Even now only a handful of men have been charged. Pretrial hearings continued this month at Guantanamo in the military commission tribunal for five detainees accused of planning the 9/11 attacks. The tribunal has been moving at a snail’s pace as it tries to hammer out a whole new system of justice to replace the federal courts where such a trial would have taken place, had Congress not interfered.
Moral tension and the rule of law
“A decade of war is now ending,” Obama told us during his second inaugural address. Yet he said nothing about the men who still languish at Guantanamo, prisoners of war for whom even a war “now ending” will not bring release.
British writer and Guantanamo expert Andy Worthington has mounted a “Close Guantanamo” campaign with U.S. attorney Tom Wilner. Worthington believes that only education will break through the obstacles to release. He writes:
“… a program of education is required — not only about a sense of fairness and justice, but also about humanising these men whose detention will otherwise be for the rest of their lives, so that their only way out of Guantánamo is in a coffin, like Adnan Latif, a Yemeni who died in September, despite having been cleared for release on several occasions, dating back to 2006."
Witness Against Torture (WAT) has used Worthington’s research and the work of organizations such as Center for Constitutional Rights to make human the prisoner statistics. The WAT activists do street theater in front of the U.S. government’s major institutions, creating images that dramatize the moral tension inherent in the prisoners’ treatment.
I myself have donned an orange jumpsuit and black hood to stand with them in front of the Supreme Court and the White House, to conduct ghost walks in the halls of congressional office buildings, and to block the entrance to the Department of Justice where justice has indeed been blocked for so many detainees in the courts.
I have learned from my work with WAT that there is a relationship between the human stories and and legal arguments the group uses in its activism. Due process has come out of a tradition with long roots in the Magna Carta, the 13th century charter that protected the individual person from arbitrary and capricious incarceration by the powerful.
The rule of law applies not to statistics about the masses, but to the person. It reflects a belief that the value and dignity of the individual must be protected. When we fail to see the individual, we fail to understand the law. When the person disappears into a collective labeled dark, foreign, and dangerous, the law succumbs to our prejudice.
WAT activists gathered in Washington D.C. in early January for a week of action marking the 11th anniversary of the prison’s opening. They found reviewing stands were already being constructed in front of the White House in preparation for the Inaugural Parade. They carried the stories of the prisoners into the bleachers, holding signs with messages, each beginning with the words: “Still waiting …” The messages were a faint echo of the promise that had been delivered with another inauguration four years earlier. Is that promise now shuttered as the office to close Guantanamo closes its own shutters?