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Guantanamo: A legacy of shame

Despite Obama's promises to close it, the prison remains open with no end in sight.
Last Modified: 22 Nov 2012 10:52
When Barack Obama was running for president in 2008, one of his biggest campaign promises was to close the prison at Guantanamo Bay [Reuters]

"They used dogs on us, they beat me, sometimes they hung me from the ceiling and didn't allow me to sleep for six days," Al Jazeera journalist Sami al-Haj, who spent six years in Guantanamo Bay prison, told Al Jazeera. "Sometimes they wouldn't allow me to use the restroom, other times they would run the air conditioner very high and leave me in that room for a very long time." 

This was after he'd had his kneecap broken just after being detained by the US military in Pakistan in 2001, when he was on a reporting assignment to cover the US invasion of Afghanistan. Al-Haj was regularly tortured by US military personnel and interrogators throughout his time in the infamous prison. 

"Sometimes they brought soldiers in to be sexual in front of me, other times they brought ladies and removed your clothes to perform sexual actions on you," He continued. "If you had an illness, like a toothache, and requested medical help, the doctor would tell you to first answer the interrogators questions and then he will care for you. I had tooth problems because they didn't give us toothbrush and paste." 

Brandon Neely, a US Military Policeman and former Guantanamo guard, told Al Jazeera detainees were "treated horribly". Neely regularly watched detainees being beaten and humiliated, as well as even watching a medic beat an inmate. 

Despite having signed non-disclosure forms before he left the prison, Neely said: "I had to talk about what was going on there. I'd rather deal with the risk of repercussions than live without talking about it because people have to know what is happening there." 

Neely isn't the only member of the US military talking about the reality of Guantanamo. 

"In the wake of 9/11, tragedy has visited the Muslim world through the United States' shortsighted and aggressive policies in pursuing this so-called War On Terror," Jason Wright, defense counsel with the US military for Khaled Sheikh Mohammed (the so-called mastermind of the 9/11 attacks) told Al Jazeera. 

"We've had a dark chapter in the nation's history that has influenced the world," Wright, whose client is in Guantanamo, "Torture, extraordinary rendition (forced disappearances), secret show trials, and other injustices are now deemed to be the practice of the United States. The US has given a license to the rest of the world to do the same. America, once the standard bearer of hope, freedom, and the rule of law, no longer serves as that shining beacon on the hill. Now it's synonymous with Guantanamo." 

Broken Promises 

When Barack Obama was running for president in 2008, one of his biggest campaign promises was to close the prison at Guantanamo Bay. 

As a candidate, he vowed to close the prison so many times he even noted so himself. 

In a November 2008 interview, when asked if he would "take early action" after elected to shut down Guantanamo, Obama replied, "Yes." 

"I have said repeatedly that I intend to close Guantanamo, and I will follow through on that," he said

"Forty-eight men have been designated for indefinite detention without trial under the Obama administration."

- Andy Worthington, author and filmmaker 

Shortly after being sworn in for his first term, Obama signed an executive order that required that the Guantanamo prison be closed within a year. 

"The detention facilities at Guantanamo for individuals covered by this order shall be closed as soon as practicable, and no later than one year from the date of this order," read the statement he signed on Jan. 22, 2009. 

Nearly a year later, with Guantanamo Bay continuing to function, Obama accepted the Nobel Peace Prize. 

In his acceptance speech, Obama proclaimed the US was "a standard bearer in the conduct of war", and that that was "what makes us different from those whom we fight," before adding, "That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed." 

The deadline in Obama's executive order passed without his shutting down the prison, and Guantanamo remains open and operating to this day. 

Andy Worthington, an author and filmmaker who has written extensively about Guantanamo Bay prison, reminded Al Jazeera that it was Obama who also signed an executive order that allows for indefinite detention. 

"48 men have been designated for indefinite detention without trial under the Obama administration," Worthington told Al Jazeera. 

Worthington believes that Guantanamo, as an institution, is a form of torture, as is indefinite detention without trial. 

In 2004, the International Committee for the Red Cross expressed concern about the mental health effects of open-ended detention on prisoners in Guantanamo. 

"That hasn't changed," added Worthington. "If they were worried bout their mental health eight years ago, what state are they in now?" 

Worthington pointed out that hunger strikers in the prison are still being subjected to force-feeding, then had these strong words for President Obama: 

"Don't pretend you are not a vile regime that puts people away forever. Adnan Latif , a Yemeni with mental health issues, died there recently. He'd been approved for transfer over and over and over again, yet at the cost of $700,000 per year, the US has been holding a man for eight years, and eventually he died. How would the American people feel if an American was captured by a foreign power and then told he would be released, then wasn't, and eventually died? It's not going to go down well, is it?" 

But Obama's recent re-election campaign was mute on the subject of Guantanamo. 

And according to David Nevin, the Lead Counsel on Khaled Sheikh Mohammed's defense team, the prison isn't closing anytime soon. 

"It's currently being expanded," Nevin told Al Jazeera. "They've just spent $730,000 on a new soccer field for the detainees, millions are to be spent on upgrading the internet, there is new home construction everywhere. You go down there and walk around and you don't get any impression that this place is going to close anytime soon. It looks for all the world like a prison that will go on indefinitely." 

The numbers 

According to lawyers and researchers affiliated with the Guantanamo Bay story, Al Jazeera is able to provide the following numbers. 

 

 Witness - Four Days in Guantanamo

There are, at present, 166 men still being held at the prison. Only three dozen of them were allegedly involved in terrorism. 

86 of those who remain have already been cleared for release by the Guantanamo Review Task Force, which includes career officials, lawyers and other experts from the governmet, and from US intelligence agencies. 

779 people have been held in Guantanamo, and 532 prisoners were released under the Bush Administration. 

Thus far, only 70 have been released under the Obama Administration. 

The disparity in the figures is attributed to at least 10 men who remain unaccounted for, and there have been deaths in the prison that many attribute to suicide or murder. 

Men still being held include Shaker Aamer, who is the last British resident in Guantanamo and has long been cleared for release. 

The last two Kuwaiti citizens in the prison, Fawzi Al Odah and Fayiz Al Kandari remain, despite neither having ever had any charges against them. According to what both men told their defense attorneys, they have been threatened with dogs, deprived of sleep, sexually humiliated, placed in stress positions for extended periods of time, and subjected to extreme temperatures and loud music. 

Both men filed habeus corpus petitions challenging the basis for their detention without charges, but their petitions were denied, and they have no charges against them. 

Several Afghans remain, including Shawali Khan, who said he was sold to US forces ten years ago. 

Abdul Ghani, said to be a pomegranate farmer and scrap metal merchant remains held, along with Djamel Ameziane, one of the last Algerians in Guantanamo, whom the Inter-American Commission on Human Rights has long since been demanding the release of.  

A lawless enclave 

"What is at stake in this case is the authority of the Federal courts to uphold the rule of law," Judge John Gibbons said during his 2004 argument before the US Supreme Court during a trial where he represented several Guantanamo detainees versus George W. Bush and the United States. 

"Respondents assert that their actions are absolutely immune from judicial examination whenever they elect to detain foreign nationals outside our borders," Gibbons, a conservative judge who strongly believes that Guantanamo should be closed, continued. "Under this theory, neither the length of the detention, the conditions of their confinement, nor the fact that they have been wrongfully detained makes the slightest difference. Respondents would create a lawless enclave insulating the executive branch from any judicial scrutiny now or in the future." 

In concluding his opening argument, Gibbons summed up what many Guantanamo critics believe to be the fundamental problem with the prison. 

"What the executive branch is saying here is we don't have to account to anyone, anywhere," he said. 

While most US citizens appear to have forgotten about the now infamous prison, Gibbons believes they do so at their own peril. 

"The average American should continue to care about what is going on in Gitmo because the average American ought to be interested in having provisions of the Constitution honoured," Gibbons told Al Jazeera. "If the Congress and executive can gang up to eliminate the habeas corpus guarantee, what else in the Constitution can they gang up on to eliminate?" 

Gibbons is clear about what he feels needs to happen. The prison should be closed, and US military personnel involved in detaining people brought to Guantanamo and their treatment there should be court-martialed. 

However, he singles out the US President as who is ultimately responsible. 

"But there's no point in talking about punishing the president," Gibbons said. "Because the only way that would happen is through a Congressional impeachment, and I don't have the votes." 

"This is a system created to provide some veneer of legitimacy to killing these men, to silence these witnesses of torture."

- David Nevin, Lead Counsel on Khaled Sheikh Mohammed's defence team

Nevertheless, Gibbons believes Obama should immediately issue orders to repatriate those in the prison who can be repatriated, and those Obama thinks should be punished "should be transferred to a detention facility in the US and have a criminal indictment returned against them." 

Gibbons added, "If Obama can't get that, he should release them." 

Nevin from Khaled Sheikh Mohammed's defense team feels similarly. 

"What we're seeing at Guantanamo isn't fair," Nevin told Al Jazeera. "It's result oriented, not process oriented. They [US government] want a conviction, and want to make sure there're no acquittals. You see this in emails and it's astounding. This is a capital case, and if the government has its way we're going to execute these guys at the end of the day." 

Like Judge Gibbons, Nevin believes the US president is ultimately responsible for what he believes are war crimes having been committed at Guantanamo. 

"We've tortured them," he said of the treatment of the detainees. "But it's still being kept secret. They've committed war crimes by torturing these guys, and it went all the way to the White House." 

His experience with the government while working to defend Khaled Sheikh Mohammed, however, has led him to even darker conclusions. 

According to Nevin, anything and everything their client tells them is considered "top secret classified" by the US government, because the government takes the position that Guantanamo detainees were tortured, and torture was part of the governments method of protecting national security. 

"The men were tortured, so therefor they aren't allowed to speak of that since they were the ones tortured," Nevin told Al Jazeera while holding up his hands in disbelief. "The government wrote that these men were "participants" in the interrogation program! The theory is that as a result of their "participation", they acquired information about secret government programs, and now being in possession of this classified information, they are not US citizens and now might use this information to the detriment of the US, so every word out of their mouth is classified information." 

In January 2007, Sami al-Haj and several other inmates went on hunger strike in order to protest their treatment in Guantanamo. In response to the hunger strike, which lasted 438 days until he was freed on 1 May 2008, al-Haj and the other participating inmates were force-fed. Al-Haj lost over 21 kilos due to his being force-fed liquids via a tube inserted up his nose on a daily basis. 

"We had no rights to go to court, no access to judges, no way to see our case and get it cleared," Al-Haj said about why he held his hunger strike. "There was no limit on the time we could stay there, and when they gave us this military court, there was no chance for us to know about their secret evidence. 

Al-Haj, who was the only journalist who has been taken to Guantanamo, said another reason he conducted his hunger strike was in protest over the way the prison guards and interrogators "insulted our religion. They defiled our holy books, they put them in toilets and flushed them, they wrote nasty things inside them, and the interrogator stood on the book and tried to make us answer his questions." 

Al-Haj confirmed what both Nevin and Wright said when he told of the other reason he conducted his hunger strike. 

"We started seeing them kill detainees, and the US said the detainees killed themselves," he said. "I asked about this, to try to being a group to investigate." 

Nevin added something shocking. 

"If you wanted a way to do illegal things to people and then keep them from talking about it, I don't know how you could dream up a better way to keep them quiet other than killing them." 

Wright, Nevin's co-defender, felt similarly. 

US Army Captain and Judge Advocate Jason Wright serves on defense teams for two Guantanamo Bay detainees facing trial before the US Military Commissions [Credit: Jason Wright]

"This is a system created to provide some veneer of legitimacy to killing these men, to silence these witnesses of torture," he said of what he sees happening at Guantanamo. "It has no foundation within fundamental principles of justice and human rights law." 

Violations of International Law 

Bill O'Neil is an international lawyer who is the Director of Conflict Prevention and Peace Forum, a program of the Social Science Research Council in Brooklyn, New York. 

O'Neil pointed out the fact that by its actions in Guantanamo, the US has violated the Convention against Torture, which it has ratified and is thus legally bound to uphold. 

In addition, torture is prohibited as a violation of international customary law, regardless of treaty ratification. 

"The Bush administration tried to narrow the international definition of torture so that essentially the prisoner/detainee would have to approach death or suffer an amputation of a limb," O'Neil explained to Al Jazeera.  

"This was a transparent attempt to exclude from the definition torture water-boarding and other practices documented at Abu Ghraib and Guantanamo, thus making these practices "legal." Yet no one would ever accept such a dilution of the meaning of torture as defined and understood under international law.  See Article 1 of the Convention: clearly what happened in certain US detention centers constituted torture." 

O'Neil pointed out numerous other violations of international law the US has committed at Guantanamo. 

Article 4 of The Convention against Torture requires the US to make torture a criminal offense and includes those who participate or are complicit in acts of torture. 

Article 7 of the Convention requires the state to prosecute persons alleged to have committed the criminal offense of torture. 

"As such under international law binding on the US, those involved in planning, ordering and overseeing those acts in Abu Ghraib, Guantanamo and elsewhere that constituted torture (and those subordinate officers who were ordered to commit torture cannot use the defense of "following superior orders") should be investigated and if the evidence so indicates, prosecuted," O'Neil said.   

"Thus, if it can be shown that former President [George W.] Bush, Vice President [Dick] Cheney, Secretary of Defense Rumsfeld and on down the chain of command participated or were complicit in torture, they should be prosecuted," he added. 

Andrea Prasow is a Senior Counterterrorism Counsel and Advocate for Human Rights Watch. Her group's position on what has happened, and continues to happen at Guantanamo is clear. 

"Fundamental principles of Human Rights Law have been violated by conditions of confinement in the past, and at present, and are violated by people being arbitrarily held without due process," Prasow told Al Jazeera. 

According to Prasow, the simple framework is that people captured cannot be held indefinitely. 

"The US government believes people can be held indefinitely if they are with Al Qaeda, but that's not the state of the law," she added. 

"In Guantanamo, people are being held without any access to any sort of proceeding, then there were the combatant status tribunals that were created to avoid Supreme Court intervention, but the basic framework of how you can deny someone of their liberty is not being applied with respect to the men in Guantanamo. Then those that are tried at military commissions do not in many respects meet the requirements of international law. So even in those respects their rights are being denied or insufficiently protected." 

"When the US treats people as if they are not human, there are very real implications on how the rest of the world perceives the US."

- Andrea Prasow, Senior Counterterrorism Counsel and Advocate for Human Rights Watch

Even with Guantanamo prison having been operating as long as it has, information about horrific practices there continues to surface. 

This October, whistle-blowing website WikiLeaks released more secret files from the US government pertaining to the treatment of prisoners at military prisons like Guantanamo that included guidelines for military officials that revealed "systematized human rights abuses." 

According to WikiLeaks, the documents, which include the 2002 manual for staff at Camp Delta at Guantanamo, reveal "a formal policy of terrorizing detainees during interrogations, combined with a policy of destroying interrogation recordings," which have "led to abuse and impunity" among US officials. 

"People in the US should care deeply about the fact that the US government is refusing to comply with international law," Prasow said. "It has implications for the treatment of everyone around the world. What will this government do when it won't comply with basic legal requirements?" 

Like Nevin and Wright, Prasow points out how the treatment of prisoners at Guantanamo is also a basic national security concern. 

"When the US treats people as if they are not human, there are very real implications on how the rest of the world perceives the US," she added. 

Nevertheless, Prasow is not holding her breath that anyone in the US is going to be prosecuted for the blatant violations of international law that have occurred at Guantanamo. But she felt there are things that the Obama administration should indeed do. 

"The president could create a bi-partisan commission to investigate the extent of what has happened and expose the Human Rights violations. Only by that will people see the extent of what has happened and why it is so important that we never go back to that again," she said. "When former Bush administration officials travel around the world they should be investigated and prosecuted under those countries domestic laws." 

But how likely is that to happen? 

"The greatest tragedy of the Obama administration is that they continue to use the state secrets privilege," Prasow said. "These ongoing lawsuits have been dismissed because of the state secrets privilege, and there's no justification for that." 

She thinks the reality is that it is impossible for a former detainee, who is entitled to compensation under international law, to be awarded their rightful compensation in the US primarily because of US law and the state secrets privilege the Obama administration continues to exercise. 

According to Prasow, the Obama administration, under international law, is required to afford people redress for ill-treatment. 

"But that has not been afforded them," she added. "And it should." 

Prasow, like Judge Gibbons, said there is a very simple legal method that could and should be used to close Guantanamo. 

"You can prosecute these people in US federal courts, and then release the others who are not prosecuted," she said. "The Obama administration could do this. That is precisely how you close Guantanamo, by following the law." 

Keeping promises 

Despite how easy it would be for the Obama administration to close the prison, it, and most of the illegal practices associated with it, continue. 

 

 No closing date in sight for Guantanamo

"The CIA's so-called rendition/detention/interrogation programme remains classified at the highest levels of the US government," Wright told Al Jazeera. "They [US government] don't want any light shown on the commission of war crimes by senior officials in the White House, the CIA, DOD [Department of Defense], and DOJ [Department of Justice] and other agencies, or those people who designed the torture regime." 

While the vast majority of information regarding how Wright and Nevin's client, Mr. Mohammed, has been tortured remains classified, what has been released and/or declassified is shocking enough in and of itself. 

So-called enhanced interrogation techniques were applied to Mr. Mohammed during his period of CIA forced disappearance. He was subjected to 183 mock executions, literally brought to the brink of death and back on the water-board 183 times, in one month alone. He was subjected to sleep deprivation for approximately 180 hours straight, and there were threats to kill his family members. 

Mr. Mohammed's defense team continues to struggle within a system that is clearly stacked against them. 

"What's insidious for us is that it's the fundamental thing you do when you represent someone is you take the things they tell you and you develop a defense for the case, and this often means repeating information they tell you," said Nevin. "We can't do that here." 

Wright added, "The entire cocktail of torture, abuse, and other mistreatment the government subjected Mr. Mohammed to remains classified, and hopefully we will be able to seek some accountability on these issues." 

Sami al-Haj, who now heads the Human Rights Department for Al Jazeera, believes the primary purpose of a place like Guantanamo for the US is to intimidate people. 

"Because anybody who is anti-US can be brought to this place and tortured," he said. "But also they use it to try to collect information, and they try to make agents [spies] out of the detainees." 

While the Bush administration is responsible for having opened the prison as well as creating the regime of indefinite detention, torture, and widespread human rights abuses, the Obama administration's refusal to deal with this has, according to Prasow, "created an environment of a lack of accountability." 

"Their refusal to prosecute anyone in the Bush administration has sent a message that people can get away with murder. When you combine the permissive environment under the Bush administration and that system being rubber-stamped by the failure to prosecute under the Obama administration, you have a bi-partisan administration that is willing to look the other way on Guantanamo." 

Meanwhile, detainees who remain within Guantanamo's walls, as well as the hundreds who have been released from the hell within those walls, have had neither redress nor compensation for their trauma. 

Al Jazeera asked al-Haj if he could talk with President Obama, what would he say? 

"I would tell Obama to keep his promise to close Guantanamo. He should respect his promise." 

Al Jazeera's requests for response from the White House remain unanswered.

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