In an executive order signed in January 2009, shortly after his first inauguration, the president wrote:
“In order to effect the appropriate disposition of individuals currently detained by the Department of Defense at Guantánamo and promptly to close the detention facility at Guantánamo consistent with the national security and foreign policy interests of the United States and the interest of justice, I hereby order. And we then provide the process whereby Guantánamo will be closed no later than one year from now.”
Currently, more than 100 Guantánamo Bay prisoners have entered the fifth week of a hunger strike — this is taking place as the Obama administration recently defended their detention at a hearing before the Inter-American Commission on Human Rights.
A number of prisoners have been held without charge for more than 11 years, and more than half have been cleared for release. Attorneys for the prisoners told the hearing that the lack of hope for release among those who do not face charges has created a climate of despair.
The senior adviser for Guantánamo policy argued that the Obama administration is working within restrictions imposed by Congress to transfer prisoners out of the prison as part of an effort to close the facility — one of President Obama’s original campaign promises.
This latest incident highlights the legal and moral quandary of Guantánamo and the failure of President Obama to make good on its closing.
The beginnings of legal limbo
“You are in a place where there is no law – we are the law.” – U.S. military intelligence officers at Gitmo.
In the immediate aftermath of the 9/11 attacks, the administration began to draw up contingency plans for prisoners captured in what is soon be called the War on Terror. Pierre-Richard Prosper, the U.S. ambassador at large for war crimes (2001–2005), was the initial point man.
In November 2001, President Bush signed an executive order authorizing the secretary of defense to hold non-U.S. citizens in indefinite detention. The city of Mazar-e-Sharif, in Afghanistan, had fallen days earlier.
The number of prisoners began accumulating rapidly, and the military was unprepared to evaluate and process them. The search for a place to hold the prisoners became, in the minds’ of the administration, more paramount and many sites were considered and eventually ruled out.
Finally, in the following month, Defense Secretary Donald Rumsfeld announced that suspected war on terror prisoners would be sent to Guantánamo Bay, Cuba and the first group of 20 detainees arrived from Afghanistan in January 2002.
Although a small number of detainees have been designated for prosecution in military courts, most remain imprisoned without charge. During the early days of the armed conflict in Afghanistan, critics of the Bush Administration — primarily human rights groups — condemned the detention of suspected al-Qaeda and Taliban fighters absent criminal charges.
In Hamdi v. Rumsfeld, the Supreme Court upheld the President’s authority, when augmented by congressional authorization for the use of military force, to detain even U.S. citizens as “enemy combatants” without the need to bring criminal charges against them.
Justice Scalia (of all people) wrote in dissent that the Constitution prohibited the indefinite military detention of an American citizen, and that the President’s lawful options were to charge the citizen detainee with a crime (such as treason), release them or seek congressional suspension of the privilege of habeas corpus.
So what we have ended up with is essentially a legal Bermuda Triangle comprised of a class of non-prisoners, non-defendants and non-persons.
The Obama War against civil liberties
During the 2008 presidential campaign, Barack Obama had sharp criticisms for the Bush Administration’s execution of the war on terrorism, especially the use of the detention facility at Guantánamo and the practice of enhanced interrogations. And, yes, there was a great deal to be criticized. Nevertheless, the Obama administration, in many ways, cloned and continued the policies it criticized.
While the moral and legal triangulation in regard to Guantánamo began during the Bush regime, the Obama administration has continued that tact with its own legal maneuverings.
The Guantánamo task force that Obama initiated as part of his first-year executive order brought together all of the relevant agencies to evaluate the Gitmo detainees — Defense, State, CIA, NSA — and determined that a certain number of them, unanimously, should be cleared for release from Guantánamo. Eighty-six of those individuals remain, despite a conclusion that they are no threat to the United States or its allies.
So let’s be clear, four years later 166 men remain locked up at the prison; 86 of them have been cleared for release, and yet haven’t been.
Additionally, a November 2012 government report found all 166 prisoners currently jailed in the U.S. prison at Gitmo, could be relocated to prisons inside the United States without posing a safety threat. The study from the Government Accountability Office noted the United States already holds hundreds of prisoners convicted of terrorism inside its borders.
In September 2012, the Obama administration filed an emergency appeal of a federal judge’s decision to block a controversial statute that gave the government the power to carry out indefinite detention. Judge Katherine Forrest ruled against a provision in the National Defense Authorization Act, or NDAA, authorizing the imprisonment of anyone deemed a terrorism suspect anywhere in the world without charge or trial.
A group of journalists, scholars and political activists had brought the case, arguing the provision was so broad it could easily infringe on freedom of speech. The administration regrettably countered that Judge Forrest’s ruling would go beyond the statute itself to curb the indefinite provisions contained in the legislation authorizing the so-called post-9/11 “War on Terror,” potentially jeopardizing the imprisonment of foreigners in Afghanistan without charge — Forrest’s decision, nonetheless, was overturned on appeal in November 2012.
This administration proves, over and over again, that they are not real fans of civil liberties protections, and yet continues to get a pass from the liberal and progressive establishment.
As if there were further need of proof for President Obama’s abandonment of his promise to close Gitmo, an internal document has revealed the Obama administration is shutting down the office of the special envoy in charge of closing Guantánamo.
According to a report in The New York Times, Special Envoy Daniel Fried is being reassigned and will not be replaced. President Obama’s rhetoric aside, his latest move indicates he is continuing to table that promise.
The forgotten ones: the detainees
Physicians for Human Rights, which uses medicine and science to advocate for human rights, addressed the psychological and physical consequences of indefinite detention at Guantánamo. Detainees. The organization posits that detainees experience chronic states of stress, anxiety and dread, because they are essentially condemned to a state of uncertainty.
And no matter how much the government heralds the great care, hospital facilities, beds and primary care providers for Gitmo detainees, those things are somewhat negated by indefinite detention. We know that stress can cause cardiovascular and respiratory disease, cancer, diabetes and PTSD (among other things).
They don’t know if they’re going to be charged, they don’t know if they’re ever going to see their families again and the contact that they do have with their families is extremely irregular or non-existent.
After over 10 years, there are those who have left children behind — children who were toddlers and are now adolescents.
There are wives, young wives at the time of their husbands’ capture, who in effect have been living in a state of widowhood; parents who mourn the loss of their sons without the closure of a body or a notice of death.
This has been our legacy and it seems the current administration is doing little to alter it.
Many heralded the election of President Obama as a seed change from Bush-era strategy in regard to indefinite detention and national security. No, that wasn’t a silver lining in the dark cloud that hung over our nation’s respect for human rights; it was a lightning bolt exclaiming the wrong and painful policies which preceded it.
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