[ There are still 30 detainees at Guantánamo. Sixteen of them
have been deemed no longer threats to the United States and cleared
for release, but arrangements have yet to be made to transfer them...
Now there are tiny steps toward closure.]
[[link removed]]

CLOSING GUANTÁNAMO? YES, A SNAIL’S PACE… BUT A PACE  
[[link removed]]


 

Karen J. Greenberg
October 5, 2023
TomDispatch [[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ There are still 30 detainees at Guantánamo. Sixteen of them have
been deemed no longer threats to the United States and cleared for
release, but arrangements have yet to be made to transfer them... Now
there are tiny steps toward closure. _

Protesters stage demonstration in front of the White House on the
17th anniversary of Guantanamo Bay, January 11, 2019., (Photo:
Victoria Pickering/CC BY-NC-ND 2.0)

 

For 18 years, I’ve been writing articles
[[link removed]] for _TomDispatch_ on
the never-ending story of the Guantánamo Bay Detention Facility. And
here’s my ultimate takeaway (for the moment): 21 years after that
grim offshore prison of injustice was set up in Cuba in response to
the 9/11 attacks and the capture of figures supposedly linked to them,
and despite the expressed desire of three presidents — George W.
Bush
[[link removed]], Barack
Obama
[[link removed]] and Joe
Biden
[[link removed]] —
to close it, the endgame remains devastatingly elusive.

At times due to a failure of will, at times due to a failure of the
system itself or the sheer complexity of the logistics involved, and
at times due to acts of Congress or the courts, efforts to shut that
prison have been eternally stymied. Despite endless acknowledgements
that what’s gone on there has defied domestic, international, and
military law — not to mention longstanding norms of morality and
justice — that prison persists.  

Recently, however, for those of us perpetually looking for a ray or
even a glimmer of hope, there have finally been a few developments
that seem to signal steps, however tiny, toward closure.

There are still 30 detainees
[[link removed]] at
Guantánamo. Sixteen of them have been deemed no longer threats to the
United States and cleared for release, but arrangements have yet to be
made to transfer them to another country. Three others are considered
too dangerous for release. And eleven have been charged in the
military commissions system that was set up in 2006 and revised under
President Obama in 2009. One, Ali Hamza Ahmad Suliman al-Bahlul, has
been convicted
[[link removed]].
Another, Abd al-Hadi al-Iraqi, recently pleaded guilty
[[link removed]].
Now, nine detainees face trials
[[link removed]] in
three separate cases. All of them were tortured at CIA “black
sites” for different periods of time between 2003 and 2006.
 

[[link removed]]

Buy the Book
[[link removed]]
 

Progress in the Biden years has been occurring, even if at a snail’s
pace. His administration has said that it intends to close
[[link removed]] Guantánamo
by the end of his term.  And in the last two and a half years, it has
indeed reduced the population from 40 to 30, the most recent transfer
of a freed prisoner to another country occurring this April
[[link removed]].
In addition, the Biden administration increased the total number of
remaining detainees eligible for release from six to its current 16
[[link removed]].

Arranging such transfers has proven painstaking work, requiring
complex negotiations with foreign countries, as well as assurances to
American officials — and ultimately Congress — that the release
will pose no future threat to the United States and that the prisoner
will be treated justly in the receiving country. Those releases have
been complicated because, after Obama announced at the outset of his
presidency that Guantánamo would close within a year,
Congress banned any Gitmo detainee
[[link removed]] from
ever being transferred to the United States for any purpose
whatsoever, a ban that’s been re-authorized
[[link removed]] every
year since then.

While those detainees cleared for release await transfer to other
countries, developments over the past few months have put the military
commissions in the forefront of activities aimed at closure.

Until now, the commissions have indeed been a dismal failure. A mere
nine convictions have been secured since the passage of the
first Military Commissions Act in 2006
[[link removed]],
all but two through plea deals, and four of the nine have been
overturned on appeal. Two remain on appeal. Generally, however, the
fact that all of the individuals currently charged and facing trial
were initially held at CIA black sites around the world where they
were grievously tortured has proven an impassable barrier to trial.
Consequently, as _New York Times_ reporters Carol Rosenberg and
Charlie Savage
[[link removed]] have
reminded us, “No former C.I.A. detainee has been convicted at trial
before a military commission.”

The reasons are many. Obama delayed the trials
[[link removed]] for
three years and the pandemic delayed
[[link removed]] them
further. But by far the biggest obstacle remains the fact that the
detainees were horrifically tortured at those black sites. Defense
attorneys have persistently insisted that evidence derived under
torture should be inadmissible in the proceedings in accordance with
the law. While the prosecutors have claimed otherwise, even so many
years later, the tortured defendants continue to suffer from the
devastating fashion in which they were treated, impeding their defense
and causing further delay. In fact, their torture-induced severe
psychological instability and often physical incapacity, not to
mention instances of distrust of their lawyers, have made it difficult
to hold hearings of any sort. As a result, after so many years, the
cases remain in the throes of pre-trial hearings and jury selection is
still far off.

President Biden has indeed set himself a lower bar than Obama, who
issued an early executive order
[[link removed]] calling
for the closure of the prison within a year only to encounter
immediate blowback and failure. Still, Biden has made some modest
headway in closing Gitmo. Since he took office, most of those who
remained in “forever prisoner” limbo have at least been cleared
for release. In addition, he’s appointed Tina Kaidanow
[[link removed]],
former State Department ambassador at large for counterterrorism, to
oversee their transfers and has secured the release of 10 prisoners
[[link removed]] since
he took office.

But the recent signs, however incremental, of further movement pertain
not to the three remaining “forever prisoners” or to the 16 who
have been cleared for release but to those being dealt with by the
military commissions established by Congress.

THE MILITARY COMMISSIONS CASES

The military commissions still face the almost insurmountable hurdle
that has haunted them from the start: the legacy of CIA torture.
Nevertheless, there has been some recent modest progress, despite the
irrevocable damage it caused both individual detainees and our system
of justice.

The first signs of movement came in the initial days of the Biden
presidency when the Pentagon referred charges
[[link removed]] against
three men to the military commissions. The two Indonesians and one
Malaysian captured in Thailand in 2003 had been accused in connection
with bombings
[[link removed]] that
targeted two nightclubs in Bali in 2002 and a Marriott Hotel in
Jakarta in 2003, resulting in the deaths of more than 200 people,
including Americans. A trial date has now been proposed for 2025.
(This would, of course, be _after_ Joe Biden’s first term in
office.)

Then, there have been signs of progress on potential plea deals. In
the summer of 2021, pretrial hearings in the case of Abd al-Hadi
al-Iraqi
[[link removed]],
an Iraqi captured in 2006 and accused of being a senior member of
al-Qaeda, began. The al-Iraqi case reached a resolution in June 2022,
when he pleaded guilty
[[link removed]] to
war-crime charges for acts committed in Afghanistan. The terms of his
plea deal are still unknown. His sentencing is set for 2024.

In addition, starting in the spring of 2022, prosecutors reached out
to defendants in the 9/11 case, who have been facing the death
penalty, to begin potential plea-deal discussions in which a maximum
life sentence would replace the threat of death. But the path towards
resolution remains fraught. In September, perhaps in response to
pressure from some of the 9/11 families
[[link removed]] intent
on keeping the death penalty in place, President Biden
reportedly refused
[[link removed]] to
approve certain details of those proposed deals. As with so much else
at Guantánamo, for every step forward, there seem to be two steps
back. Still, negotiations are presumably continuing.

In another instance of inching forward, the commissions have recently
addressed the case of Ramzi bin al-Shibh, one of the 9/11 defendants.
He has displayed severe signs of mental instability, including
delusions and hallucinations, owing to his brutal treatment in CIA
custody. He’s convinced, for instance, that CIA agents are still
pumping unnerving noises and vibrations into his cell, causing sleep
deprivation. His inability to talk about much else has stymied the
attempts of his lawyers to prepare him for future hearings. Last June
6th, in fact, a panel of psychiatrists and forensic experts declared
him
[[link removed]] unfit
to stand trial, given his post-traumatic stress syndrome and his
psychotic delusions. Based on their report, Commissions Judge Matthew
McCall agreed
[[link removed]] and,
on September 21, 2023, severed him from the trial.

EXCLUDING TORTURED EVIDENCE

While there are, in other words, signs of progress via plea deals and
severance, the most promising development may be in the longest
running military commission case of all, that of Abd al-Rahim
al-Nashiri. He’s accused of masterminding the bombing of the _USS
Cole_ [[link removed]], a
destroyer off the coast of Yemen, in 2000 killing 17 American
servicemen.

Al-Nashiri, a Saudi, was held in CIA black sites from 2002 to 2006,
while being tortured using techniques
[[link removed]] like
waterboarding, stress positions, forced sodomy, and mock executions.
He was finally indicted in 2011, but his case has faced innumerable
pretrial hurdles since then, largely involving debates over evidence
derived from torture and the possible inadmissibility of it at trial.

Lawyers considered that his case had taken a step forward when the
government reversed its position
[[link removed]] on
torture-derived evidence. A Biden Department of Justice brief
[[link removed]] filed
on January 31, 2022, said, “The government recognizes that torture
is abhorrent and unlawful, and unequivocally adheres to humane
treatment standards for all detainees… [T]he government will not
seek admission, at any stage of the proceedings, of any of
petitioner’s statements while he was in CIA custody.” That
reversed a prior policy allowing such statements to be used in
pretrial hearings, if not at trial itself.

Then, in August, the judge in the case made torture the grounds for
taking yet another step forward. Like other detainees, al-Nashiri had
been interviewed in later years by FBI “clean teams
[[link removed]]” of agents who attempted
to solicit the same confessions without torture and were often
successful. The prosecution wanted to use those confessions, but
defense attorneys argued that the impact of torture didn’t dissipate
with the clean teams, that the detainees feared their torturers were
waiting in the wings to punish them if they gave different answers.
They insisted that the defendant’s torture trauma and the perpetual
fear of more of it remained an ongoing obstacle to statements of
truth.

Al-Nashiri’s lawyers filed papers seeking to exclude his clean-team
testimony.  Judge Lanny Acosta then took a long-overdue step
forward, ruling against
[[link removed]] the
admission of such later confessions. He noted that the clean-team
agents “acted professionally and in no way coerced the accused,”
even offering “tea and pastries” and reassuring the defendant that
he was no longer in CIA custody. Nonetheless, Acosta ruled the
statements inadmissible in pre-trial proceedings as well as at trial,
since prolonged torture had undoubtedly affected al-Nashiri’s later
testimony.

In his 50-page opinion
[[link removed]],
the judge offered a detailed chronology of the kinds of torture
Nashiri had suffered and noted as well the continued use of force
against him during his time at Guantánamo, treatment and conditions
that could indeed evoke memories of his period in CIA custody. As the
judge wrote,

“[H]e was in no position to know whether Drs. Mitchell and/or Jessen
[the architects of the CIA’s “Enhanced Interrogation” program]
were watching…. prepared to intervene with more abusive treatment…
He had no reason to doubt that he might, without notice, suddenly be
shipped back to a dungeon like the ones he had experienced before…
[or if someone] lurked nearby with a pistol, a drill, or a broomstick,
ready to intervene in the event he chose to remain silent or to offer
versions of events that differed from what he told his prior
investigators.”

As the Judge concluded
[[link removed]],
“Even if the 2007 statements were not obtained by torture or cruel,
inhuman, and degrading treatment, they were derived from it.” Michel
Paradis, a senior attorney in the Department of Defense’s Office of
the Chief Defense Counsel and counsel for Abd al-Rahim al-Nashiri, has
summed up the situation aptly, telling me, “What the refusal to
admit the so-called ‘clean team’ statement shows is what anyone
who looks at it up close sees. There is nothing clean about torture
and there is no way to sanitize it.”

The judge’s decision also marks a potential threshold for the
remaining Gitmo cases. If evidence from torture is disallowed,
including in pre-trial proceedings, that may lead to future plea deals
and even some leniency. Either way, in the wake of Judge Acosta’s
decision, the interminably slow Guantánamo cases might just begin to
proceed more rapidly.

Add to all this the effect of the passage of time, given among other
things the aging not just of Gitmo’s prisoners, but of those working
to bring their cases to trial over all these years, many of whom have
retired. Judge Acosta gave notice
[[link removed]] of
his retirement from the Army as September ended
[[link removed]],
while Matthew McCall, the fourth judge to preside over the 9/11 case,
has similarly indicated that he’ll be leaving next April
[[link removed]],
also before it comes to trial. Several of the attorneys for the
detainees have retired as well, after so many years representing their
clients.

The belated but increasingly accepted notion that torture renders
trials impossible, now seemingly shared by the court as well as the
defense teams, has become more than mere rhetoric. As Paradis
commented to me, “No justice system worth the name permits even the
whiff of evidence tainted by torture. We have revolted at the idea for
more than a century in this country and even persuaded the world that
it should do the same, such as when Ronald Reagan signed the
Convention Against Torture.”

Ironically, the acknowledgement of this reality may finally bring
these cases to their conclusion. But so many years later, despite
being determined to grasp every ray of hope, I suspect that, when it
comes to the closing of Guantánamo, the sorrowful record of the past
may overshadow the dreams of a better tomorrow. 

_[KAREN J. GREENBERG, a TomDispatch regular
[[link removed]], is the
director of the Center on National Security at Fordham Law. Her most
recent book is Subtle Tools: The Dismantling of American Democracy
from the War on Terror to Donald Trump
[[link removed]],
now out in paperback. Claudia Bennett and Ava Gagliardi contributed
research for this article.]_

_Copyright 2023 Karen J. Greenberg. Cross-posted with permission. May
not be reprinted without permission from TomDispatch
[[link removed]]._

_Follow TomDispatch on Twitter
[[link removed]] and join us on Facebook
[[link removed]]. Check out the newest Dispatch
Books, John Feffer’s new dystopian novel, Songlands
[[link removed]] (the
final one in his Splinterlands series), Beverly Gologorsky’s
novel Every Body Has a Story
[[link removed]], and
Tom Engelhardt’s A Nation Unmade by War
[[link removed]],
as well as Alfred McCoy’s In the Shadows of the American Century:
The Rise and Decline of U.S. Global Power
[[link removed]], John
Dower’s The Violent American Century: War and Terror Since World
War II
[[link removed]], and
Ann Jones’s They Were Soldiers: How the Wounded Return from
America’s Wars: The Untold Story
[[link removed]]._

* Guantanamo Bay
[[link removed]]
* War on Terror
[[link removed]]
* War on Terrorism
[[link removed]]
* Bush administration
[[link removed]]
* Iraq War
[[link removed]]
* Afghanistan War
[[link removed]]
* Biden Administration
[[link removed]]
* Taliban
[[link removed]]
* 9/11
[[link removed]]
* Sept. 11
[[link removed]]
* Torture
[[link removed]]
* war crimes
[[link removed]]
* Human Rights
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]

Manage subscription
[[link removed]]

Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]