Wednesday, November 6, 2013

The Guantanamo Hunger Strike

In February 2013 a hunger strike began at Guantanamo Bay as a result of what the prisoners viewed as the mistreatment of the Koran. The strike was also fueled by many prisoners’ frustration with being held either after being cleared for release 3 years prior or being designated to be held indefinitely without any trial at all.

In March 2013 the prison acknowledged that 14 prisoners were on hunger strike and said that 6 were being force fed. Some medical ethicists oppose force feeding but a spokesman for the prison said that the practice was used in order to protect the “life and health” of the prisoners.

In May 2013 Obama gave a speech where he said that he would lift the moratorium on releasing prisoners to Yemen.

During the G8 summit in June 2013 British Prime Minister David Cameron requested that Obama free Shaker Aamer, a British resident who was one of the hunger strikers. Aamer was cleared for release under the Bush Administration in 2007 and under the Obama Administration in 2010. Aamer says that he was doing charity work when he was captured in Afghanistan.

Later in June 2013 Aamer claimed that the prison authorities were using freezing cold cells and metal tipped feeding tubes to convince prisoners to stop their hunger strike. Aamer also said that a nurse who was force-feeding a prisoner pushed the feeding tube into the prisoner’s lung rather than his stomach. Aamer said of the tactics, “The administration is getting ever more angry and doing everything they can to break our hunger strike. Honestly, I wish I was dead."

On June 28 the hunger strike reached its peak with 106 of the 166 prisoners on hunger strike.

In July, twenty five prisoners quit hunger striking after guards allowed the prisoners to live communally if they gave up their hunger strike. During their hunger strike they had been living alone for months.

In August the Obama Administration transferred 2 prisoners to Algeria, they were the first to leave the prison since September 2012 when Omar Khadr was transferred to a prison in Canada.

The Miami Herald is reporting that there are still 14 prisoners on hunger strike, all of whom are being force fed.

Tuesday, November 5, 2013

How to Close Guantanamo

President Obama has said that he wants to close Guantanamo. Here is how he could do so if he cares enough to fight for it.


Britain, Egypt, Tunisia, Kuwait, Afghanistan, and Yemen are all pressuring the United States to release prisoners from their countries held at Guantanamo Bay. 55 of the 83 prisoners cleared for release at the prison are from Yemen. In fact 73 of the 83 prisoners cleared for release are from countries that are either actively seeking their release or have taken Guantanamo prisoners in the past (5 Tunisians, 4 Afghans, 1 Brit, 3 Algerians, a Mauritanian, a Moroccan, a Saudi, a Sudanese, and an Emirati). Obama could order these prisoners released immediately. As they have been cleared for release for over 3 years now, he has an obligation to do so.

If Obama were the abandon the idea of indefinite detention and order the prisoners in that category to be released as well, 44 of the 47 are from countries that have taken Guantanamo prisoners before or are actively seeking their release.

Suitable homes for the remaining 10 cleared for release and 3 indefinite detainees could be found using creative diplomacy. We have already done so with 19 of the Uighurs.


Closing the physical prison at Guantanamo would also require dealing with the remaining category of prisoners, those recommended for trial. Some prisoners are only accused of providing material support for terrorism and/or conspiracy. These are crimes that the DC Court of Appeals has ruled cannot be tried in military commissions for actions taken prior to 2006, when Congress gave those courts the authority to do so. These individuals must be tried in civilian courts in the United States. Individuals accused of more significant crimes can continue to be tried in military commissions at Guantanamo.

The provisions banning the transfer of prisoners to the US are amendments to yearly appropriations bills. They must be reapproved every year. So if the President actually commits to closing Guantanamo, He can veto the 2014 NDAA when Congress passes it with the provision. Doing so would limit funds for our soldiers fighting in Afghanistan, but the President could easily blame Congress for “politicizing money for our troops abroad.” Once the trials both military and civilian are completed, the president could move the prisoners to Thompson, Illinois to serve their sentences.


Correction (December 4, 2013): After I wrote this editorial I learned that the 3 remaining Algerians at Guantanamo who have been cleared for release do not wish to return to Algeria. That brings the number of prisoners who are cleared for release but for whom new homes must be found to 13. By nationality they are as follows: 4 Syrians, 3 Algerians, 3 Uighurs, a Libyan, a Tajik, and a Palestinian.

If those currently scheduled for indefinite detention are cleared for release due to inadequate or unreliable evidence of guilt, as I recommended, the number would be 16. The additional 3 are 2 Libyans and a Kenyan. To be clear the Kenyan is the only man from his country to have been held at Guantanamo, so it is unclear if the Kenyan government would be willing to take him back or not.

But that still leaves 70 prisoners who are cleared for release who wish to return to their home country and whose country’s government has taken Guantanamo prisoners in the past or is actively campaigning for their release.

The text in the original editorial remains unchanged.  

The Injustice of Indefinite Detention

Prisoner: Why I am here?

Guard: You’re wife was murdered.

Prisoner: And you think I did it?

Guard: Spouses are often the ones responsible when their partner is murdered.

Prisoner: Then when is my court date?

Guard: You’re not going to have one.

Prisoner: Then you’re releasing me?

Guard: No.

Prisoner: You can’t hold me here without planning to give me a trial!

Guard: Yes I can. You might be guilty and therefore you’re too dangerous to release. It’s too bad we don’t have enough evidence to bring you to trial.

Everyone can recognize the injustice of this scenario. And it is the exact situation that 47 of the prisoners at Guantanamo find themselves in. But instead of being suspected of murdering their wives, the prisoners are accused of connections to terrorism.

On September 14, 2001 Congress passed the Authorization for the Use of Military Force which authorized the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terror against the United States by such nations, organizations, or persons.”

President Bush and President Obama interpreted this law as allowing the indefinite detention of Al Qaeda and Taliban suspects without charge or trial. Courts have upheld this presidential power “until the end of hostilities.” As the War on Terror, or as Obama likes to say “the war against Al Qaeda,” is endless, so is this power.

The core of Guantanamo is the concept of indefinite detention. What do you do with the people that you think might be guilty but don’t have the evidence to prove that they are in a court of law? Both the President and Congress believe that these people should be imprisoned until they die. In their view the greater harm would come from releasing someone who does have ties to terrorism than in keeping an innocent man in prison. And indeed there have been a few former Guantanamo prisoners who were militants that returned to the battlefield after they were released. The exact number is hard to determine, but it is likely small compared to the number of prisoners who haven’t.

I think the greater harm comes from wrongly imprisoning an innocent person. It is also possible that some of the prisoners in this group are guilty of working with Al Qaeda or the Taliban, but played minor roles. No civilized country can adopt a policy whereby it keeps prisoners locked up for the rest of their lives without a trial. That is a power that is fit only for tyrants and despots. 

Guantanamo Explained

What vision does Congress have for the prison?

Congress does not want Guantanamo prisoners released in the United States, out of a fear that they might be dangerous, even if they have been cleared for release. Congress does not want Guantanamo prisoners held in prisons in the US for fear that the prisoners may be able to coordinate plots from within the prison, might be able to stage a prison break, or that the prison may be the sight of an attack to free the prisoners. Congress doesn’t want prisoners tried in civilian courts in the United States because in their minds Ahmed Ghailani almost got away as a result of his trial.

How committed is Congress to its vision?

Very committed.

What vision does the President have for the prison?

President Obama wanted to bring prisoners scheduled to face a military commission or to be held in indefinite detention to a prison in Thompson, Illinois. He wanted to try some prisoners in civilian courts and release others. He, like Congress, is committed to indefinite detention, the idea that there are some prisoners who are too dangerous to release but for whom there is not enough evidence to bring to trial. He would like to close the physical prison at Guantanamo eventually.

How committed is the President to his vision?

Not very. Most, if not all, of his other goals (immigration reform, progress on gay rights, a climate change bill, a grand bargain on reducing the deficit) are more important to him than getting what he wants on Guantanamo.

Why is the prison still open?

Congress’s vision requires that Guantanamo stay open and Congress is much more committed to its vision for Guantanamo than the President is.

Why didn’t Obama meet his 1 year deadline to close the prison?

It wasn’t until 11 months into his 12 month deadline that Obama actually had determined exactly how he wanted to deal with Guantanamo. This was primarily because his Guantanamo task force that determined the administration’s plan on what to do with each prisoner took longer to do so than he had expected. This was partly because it took time to find all of the physical documents about each prisoner. The plan Obama decided on in December 2009 wouldn’t have even allowed him to close Guantanamo on time, the prisoners cleared for release would have been continued to be held at Guantanamo. As 83 prisoners cleared for release remain there to this day, it appears that Guantanamo would still be open today even if Obama had gotten everything he wanted.

Obama-Congress-Guantanamo Timeline

In August 2007 candidate Barack Obama promised to close the Guantanamo prison if elected president. Obama’s general election opponent John McCain was also in favor of closing the prison.

In the first hours of his presidency, Obama suspended the military commissions system set up by the Bush Administration to try prisoners at Guantanamo in order to review the process and see if there were any changes he wanted to make.

On January 22, 2009, during his first week as president, Barack Obama signed an executive order to close the prison at Guantanamo Bay, Cuba within a year. The order also created a task force composed of high level members of the Obama Administration to determine whether each prisoner should be transferred, released, prosecuted, or held in indefinite detention. The executive order clearly allowed for the possibility that some prisoners may be chosen to be held in indefinite detention without ever being tried.

One of the problems the task force faced was the difficulty of finding the physical documents about each prisoner.

The Obama Administration planned to release two of the Uighur prisoners in northern Virginia, where there is a Uighur community. Senate minority leader Mitch McConnell opposed the plan, saying, “By releasing trained terrorists into civilian communities in the United States, the administration will, by definition, endanger the American people.” In May 2009 Obama abandoned the plan. That decision made it much more unlikely that third countries would agree to take Guantanamo prisoners due to the US’s own unwillingness to do so. It also showed Congress that he was not willing to fight for the measures necessary to close the prison.

Later in May 2009 the Senate voted 90 to 6 to remove funding to close Guantanamo from a military spending bill. House Democrats had already removed the funding from their version of the bill. When the bill passed in June, it prevented the president from transferring any prisoner to the US except for prosecution.

The day after the Senate vote to remove the funding from the bill, Obama gave a major national security speech. In it he announced that he would bring back military commissions, with some modifications. He also announced that he would continue to hold some Guantanamo prisoners in indefinite detention without trial.

In November 2009 Obama admitted that he would miss his one year deadline for closing Guantanamo.

In December 2009 the Obama Administration announced its plan to buy a prison in Thompson, Illinois that would hold some of the Guantanamo prisoners. The prisoners the Administration planned to imprison there would be held in indefinite detention or would be tried by military commissions.

Mitch McConnell said of the plan, “The Administration has failed to explain how transferring terrorists to Gitmo North will make Americans safer than keeping terrorists off our shores in the secure facility in Cuba.”

Later in December 2009 a Nigerian man attempted to blow up a plane heading to Detroit using a bomb hidden in his underwear. The US government believes that the plot was directed by Al Qaeda in the Arabian Peninsula out of Yemen. In January 2010 Obama imposed a moratorium on transferring Guantanamo prisoners to Yemen for fear that if the released men were members of Al Qaeda or had terrorist sympathies they could easily join the active branch of Al Qaeda in Yemen.

Later in January 2010 the Obama Administration task force on Guantanamo released its results. Of the 164 prisoners currently at Guantanamo, 83 were cleared for release, 47 were designated to be held in indefinite detention without trial, and 34 were referred for prosecution.

The first person tried by a military commission under the Obama Administration was the Al Qaeda child soldier Omar Khadr. Khadr accepted a plea deal in October 2010 to serve one more year at Guantanamo and 7 years in a prison in Canada.

In November 2010 a civilian jury found Guantanamo prisoner Ahmed Ghailani guilty of conspiracy to destroy federal buildings and property. Ghailani admitted buying the TNT and truck used in the 1998 bombing of the US embassy in Tanzania. However, the jury acquitted Ghailani of all of the other 284 counts. The prosecution was prohibited by the judge from using a witness the government learned about the witness as a result of coercive interrogation. The witness said he sold Ghailani the TNT. In January 2011 he was sentenced to life in prison. As a result of the verdict, Republicans criticized Obama’s decision to try some Guantanamo detainees in civilian courts before the sentence was even announced.

In December 2010 Congress passed the National Defense Authorization Act for 2011, a bill that funds the military, with a provision banning the transfer of Guantanamo prisoners to the US for any purpose, including trial. Obama signed the law in January 2011. Similar measures passed in the 2012 and 2013 NDAA as well. Obama did not veto any of these bills.

In October 2012 former Guantanamo prisoner Salim Hamdan’s conviction by a military commission was overturned by the DC Court of Appeals. The court ruled so because material support for terrorism, the crime he was convicted of, was not a crime that could be tried by a military commission at the time he committed the actions that served as the basis for his conviction.

This ruling meant that the prisoners that prosecutors planned to try for material support for terrorism and conspiracy could no longer be convicted in a military commission. The prisoners could not be tried in civilian courts because of the prohibition against transferring the prisoners to the United States in the NDAA. So instead they will be held in indefinite detention without ever receiving a trial.

In January 2013 the state department reassigned Daniel Fried, the special envoy for closing Guantanamo, and said that they would not replace him.

At the start of 2013 opponents of the prison were incredibly disheartened. The prisoners were as well. In February they began a hunger strike at Guantanamo.