Five Years Since a Promised Return to the Rule of LawBy January 2009, when Obama assumed the Presidency, there remained 242 detainees in Guantanamo. The vast majority (80%) of these were captured in Afghanistan/Pakistan in the early operations of the war in Afghanistan. Many of them were not captured on the battlefield but turned in for large bounties offered by the U.S. government. Many of them were from Yemen.
Obama assumed office in January 2009 determined to close Guantanamo within a year. The goal was to return remaining inmates to their home country, to release them, transfer them to a third country, or to another U.S. facility subject to the rule of law. It was not to be. It soon became apparent that third countries were not eager to take Guantanamo detainees, and Congress wanted nothing to do with transferring alleged terrorists to U.S. soil...or having them released. On May 19, 2010, the U.S. House of Representatives Armed Services Committee unanimously blocked funding for a proposed facility in Thompson, Illinois and blocked funding for any future potential replacement sites. To further complicate matters Congress also blocked funding to transfer any prisoners to U.S. soil, even for trial, and blocked funding to transfer them to third countries unless Secretary of Defense Gates personally certified that they posed no risk to the United States. [This certification requirement was somewhat relaxed by Sec. 1028 of the 2013 National Defense Appropriations Act to a level that can conceivably be met]
At this time 149 prisoners remain in custody. Seventy-eight of these have never been charged with anything and are not deemed a risk of reverting to terrorism. Thirty-eight are deemed too dangerous to release even though the government lacks sufficient evidence to convict them of anything. A few have been convicted. The rest are in limbo and may, or may not be tried in some tribunal or court at some indefinite time and location in the future.
In the twelve and a half years since the prison was opened, more prisoners have died (9) than have been convicted (8).
The Hunger StrikersAbu Wa'el Dhiab has been held at Guantanomo since 2002. He has never been charged with anything. In 2005 he initiated a federal suit challenging his indefinite detention as violating the U.S. Constitution, the Alien Tort Statute (28 U.S.C. Sec. 1350), and international law. Justice moves slowly. In 2009 the Guantanamo Review Task Force cleared Mr. Dhiab for release from detention, but five years later he still has not been released and his action is still pending. He has not had his day in court.
In July, 2013, Mr. Diabh filed a motion in his action to enjoin the government from continued use of this method of force feeding. The District court ruled it did not have jurisdiction. Mr. Diabh appealed. Justice moves slowly. In the meantime, the painful force-feeding continued. Six months later, on February 11, 2014, the court of appeals held that the District Court did have jurisdiction to rule on the conditions of Mr. Diabh's confinement after all.
In May 2014, the government revealed that it had several videotapes of the force-feeding. After some discovery motions the government lodged the videotapes with the court as privileged documents under seal. Several news organizations intervened in the case to ask the judge to grant access to these tapes. The government resisted disclosure arguing that it had marked the tapes as "classified" and that the videos would prove inflammatory in a way that might be touted by terrorists, and thus hurt the fight against terror.
On Friday, October 3, 2014 a U.S. District court judge in Washington D.C ruled that the media must be granted access to the videos of this force-feeding. The court strongly rejected the government's argument that it should be able to suppress these videos because they might place the U.S. in a bad light. The court noted that evidence lodged in a trial is generally a matter of public record and that any exceptions have to be determined by the court, not by the government on its own prerogative. The government may or may not appeal.
In the meantime, a hearing is scheduled next week before the court on whether the force-feeding can continue in its present manner. The merits of the constitutional, statutory, and international law claims remain some time off.
Justice moves slowly.
The Curse of Politics
In the meantime, vile politics continue to determine the fate of the 78 detainees who, after 14 years, remain uncharged with anything and have been determined not to be a terrorist threat. A key purpose of the rule of law is to protect us from the venality and arbitrariness of smarmy politicians. To respond "These are just a bunch of Yemeni's" is no answer.
Who is let go doesn't necessarily depend on the seriousness of the charges against them. It's often a political determination; so we're now hearing reports that the United States is negotiating over the release of five Taliban detainees who are high level Taliban officials, and yet there are people with the most preposterously tenuous connections to the Taliban or terrorism in general who won't get out because there is no genuinely rational or judicially managed process in Guantanamo. It's subject to the political whim of the Executive and fear mongering generated by Congress to cow the Executive from taking the kind of action he promised he'd take three years ago. ...
I used to teach U.S. constitutional law at Seton Hall law school. And it occurs to me that this generation of first year law students, say 24 years old, will have spent the majority of their adult, politically awake lives with an institution like Guantanamo in existence. And it's going to be so much harder to explain to them how incredibly anomalous this place is in the constitutional American human rights tradition, when they see it as utterly ordinary to their experience.
Release of Those Five Taliban Officials
The five Taliban officials that Azmi refers to are the five who were exchanged by Obama for Sgt. Bergdahl this past May. Sergeant Bergdahl was an imbalanced U.S. army deserter who was captured by the Taliban aligned Haqqani network in Eastern Afghanistan. In order to secure his release, Obama agreed to release five Taliban officials from Guantanamo. These were part of the two dozen detainees categorized as "too dangerous to release" until the final defeat of world-wide terrorism. It's curious that all of a sudden they are "o.k. to release" in exchange for some mentally deranged deserter. Congress jumped all over Obama for being soft on terrorism by agreeing to the exchange.
I support the release of these five Taliban officials in order to obtain the release and return of Sgt. Bergdahl. I do so because I don't think that the release of any of the Guantanamo detainees will hurt the war on terror. To the contrary, to the extent that we set an example to live by the rule of law, we are helping the war on terror. We need to live by the rule of law to explain it to the next generation of law students, and the world.
Setting an example to live by the rule of law means, granting all Guantanamo detainees due process and a fair and speedy trial. Twelve years is long past "speedy." It's long past sufficient time to gather what evidence the government can muster.
Charge and try these detainees in a fair trial, or release them. All of them. Now.