Posted by on June 12, 2013 in Blog

By Abdulaziz Al-Alami

AAI Summer Legal Fellow

As President Obama’s second term begins in earnest, the lingering question of Guantánamo Bay is perhaps the most important of the issues that will define his legacy. The decision to use the Naval base at Guantánamo as a detention facility was made in 2002 to hold “enemy combatants” on the heels of the U.S. invasion of Afghanistan in 2001. Hundreds of individuals have been detained in the camp since then, and hundreds have been released, transferred to other detention centers in other countries, or brought to the United States for trial.

According to the Center for Constitutional Rights (CCR), 166 detainees remain at Guantánamo Bay, 86 of which have not been charged with any crime and have been cleared for release unanimously, “by all relevant military, law enforcement and intelligence agencies comprising the Guantánamo Review Task Force. ” Over 100 of the 166 detainees are now participating in a hunger strike. 

The Legal Conundrum

A number of legal restrictions exist on closing the facility. The Obama Administration has imposed a moratorium on transferring any Guantánamo detainee to Yemen, but 56 of the 86 men who have already been cleared for release are from that country. President Obama earlier this year signed the National Defense Authorization Act, Fiscal Year 2013 (NDAA) into law. Under Section 1022 of the law, the Pentagon cannot “construct or modify any facility in the United States… to house any individual detained at Guantánamo.” In other words, funding may not be used to transfer Guantánamo detainees to federal prisons in the United States. The NDAA also requires the Secretary of Defense under Section 1027 to apply stringent certification criteria in order to approve the transfer of detainees to other countries. The President has the option of issuing a National Security Waiver whereby he could approve the transfer of detainees who no longer pose a military threat.

In sum, the law now prohibits the transfer of detainees to the U.S., and creates a difficult, albeit manageable, mechanism for the Secretary of Defense and the President to clear detainees for release to third countries.  These restrictions are in addition to the self-imposed blanket ban on any transfers to Yemen. These restrictions have created a legal/political limbo. We must face the fact that if nothing is done, these people who have not been charged with crimes, some of whom have been cleared for release, will almost certainly die in Guantánamo Bay.

The Humanitarian Disaster

“Do whatever you wish to do, the issue is over,” said Adnan Latif, a detainee in camp 5 of Guantánamo Bay. Latif described the detention center in a letter to his lawyer David Remes as “a prison that does not know humanity, and does not know [anything] except the language of power, oppression, and humiliation for whoever enters it.” Imprisoned in the detention center since 2002, Latif was never charged with a crime, and was not allowed to return to his home country of Yemen because of the moratorium. Despite being cleared for release in 2004 and 2007 by DoD, and again in 2009 by the Obama administration’s multiagency Guantánamo Review Task Force, and despite a 2010 court order for his release (subsequently overturned), Latif’s imprisonment continued. He went on a hunger strike a number of times to protest his treatment and later attempted suicide. The court decision ordering that Latif remain in prison essentially required that courts accept the government’s allegations at face value. It put the burden on the detainee to prove he was not a terrorist, rather than the usual presumption of innocence. 

On September 8, 2012, Latif was found unconscious in his cell, and could not be revived. He was pronounced dead after a decade of imprisonment, without charge or trial.  Latif was not the first to die in Guantánamo Bay. According to Baher Azmy’s op-ed in The New York Times, Salah al-Salami, a Yemeni, and Yasser al-Zahrani and Mani al-Utaybi, both Saudis, died in 2006.

Today, over 100 of the 166 detainees at Guantánamo are participating in a hunger strike to protest their treatment. Some of these individuals have been force-fed with a tube inserted in their nose that reaches their stomach, a process that Rupert Coville, a spokesman for the United Nations High Commissioner for Human Rights, described as “torture,” “inhumane,” and in violation of international law. In April, the High Commissioner, Navi Pillay, renewed her call for the United States to close Guantánamo Bay, arguing that the prison “amounts to arbitrary detention and is in clear breach of international law.”

The President’s Speech, and Possibilities for Moving Forward

On May 23, 2013, President Obama made a widely anticipated national security speech at the National Defense University in Washington, D.C. “We are committed to prosecuting terrorists wherever we can. The glaring exception to this time tested approach is the detention center at Guantánamo Bay,” he said.  The President cited the annual costs of keeping the detention center open: $150 million each year for 166 people, almost $1 million per prisoner. The Pentagon now estimates the facility will require an additional $200 million to keep it open. Obama pointed out that during President Bush’s administration, over 530 detainees were transferred from Guantánamo with congressional support. “There is no justification beyond politics for Congress to prevent us from closing a facility that should have never been open,” Obama said.

To that end, the President:

  • Called on Congress to lift the restrictions on detainee transfers from Guantánamo,
  • Asked the Department of Defense to designate a site in the United States where military commissions can be held,
  • Announced the appointment of new, senior envoys at the State and Defense Departments whose sole responsibility will be to achieve the transfer of detainees to third countries,
  • Most importantly, he announced he would lift the moratorium on detainee transfers to Yemen, so they can be reviewed on a case-by-case basis. “To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries. Where appropriate, we will bring terrorists to justice in our courts and military justice system. And we will insist that judicial review be available for every detainee.”

Following up on the promises made in the President’s speech, Rep. Jim Moran (D-Va.) led 26 lawmakers in writing a letter to the President to commend him on his renewed commitment to close the facility and to urge him to do so swiftly. In May, Moran introduced an amendment to Section 413 of the FY2014 Military Construction and Veterans Affairs Appropriations Bill. Moran’s amendment would have lifted the prohibition on using funds to renovate any U.S. facilities in order to house Gunatánamo detainees. Unfortunately, his amendment failed to garner enough votes to pass. The current language in the Military Construction and Veterans Affairs Appropriations bill is similar to that of NDAA, which prohibits the use of any funds to be used to construct a facility in the United States to house individuals detained at Guantánamo Bay.

Someone who knows the detention center in Guantánamo all too well is Lakhdar Boumediene. He was held in Guantánamo Bay for years without charge and was finally released on the heels of the landmark decision in Boumediene v. Bush, in which the Supreme Court declared that Guantánamo detainees have a constitutional right to habeas corpus to challenge their detention before a neutral judge. The Boumedine decision, decided five years ago today (June 12, 2008), is immensely important in that it refutes Guantánamo’s original premise – that the detainees there would have no access to the courts to challenge their detention.

Mr. Boumediene described his time in Guantanamo in an exchange with MSNBC’s Chris Hayes, which can be viewed here.

The legal and political struggle over how to deal with the Guantánamo detainees continues, but all parties should remember the larger humanitarian struggle of those who are currently on a hunger strike in Cuba. Their nightmare continues.

comments powered by Disqus