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Monday, December 09, 2019

Tag: guantanamo prison

If Afghan War Ends, Will Guantanamo Finally Shut Down?

Reprinted with permission from TomDispatch

The Guantánamo conundrum never seems to end.

Twelve years ago, I had other expectations. I envisioned a writing project that I had no doubt would be part of my future: an account of Guantánamo's last 100 days. I expected to narrate in reverse, the episodes in a book I had just published, The Least Worst Place: Guantánamo's First 100 Days, about — well, the title makes it all too obvious — the initial days at that grim offshore prison. They began on January 11, 2002, as the first hooded prisoners of the American war on terror were ushered off a plane at that American military base on the island of Cuba.

Needless to say, I never did write that book. Sadly enough, in the intervening years, there were few signs on the horizon of an imminent closing of that U.S. military prison. Weeks before my book was published in February 2009, President Barack Obama did, in fact, promise to close Guantánamo by the end of his first year in the White House. That hope began to unravel with remarkable speed. By the end of his presidency, his administration had, in fact, managed to release 197 of the prisoners held there without charges — many, including Mohamedou Ould Slahi, the subject of the film The Mauritanian, had also been tortured — but 41 remained, including the five men accused but not yet tried for plotting the 9/11 attacks. Forty remain there to this very day.

Nearly 20 years after it began, the war in Afghanistan that launched this country's Global War on Terror and the indefinite detention of prisoners in that facility offshore of American justice is now actually slated to end. President Biden recently insisted that it is indeed "time to end America's longest war" and announced that all American troops would be withdrawn from that country by September 11, the 20th anniversary of al-Qaeda's attack on the United States.

It makes sense, of course, that the conclusion of those hostilities would indeed be tied to the closure of the now-notorious Guantánamo Bay detention facility. Unfortunately, for reasons that go back to the very origins of the war on terror, ending the Afghan part of this country's "forever wars" may not presage the release of those "forever prisoners," as New York Times reporter Carol Rosenberg so aptly labeled them years ago.

Biden And Guantánamo

Just as President Biden has a history, dating back to his years as Obama's vice-president, of wanting to curtail the American presence in Afghanistan, so he called years ago for the closure of Guantánamo. As early as June 2005, then-Senator Biden expressed his desire to shut that facility, seeing it as a stain on this country's reputation abroad.

At the time, he proposed that an independent commission take a look at Guantánamo Bay and make recommendations as to its future. "But," he said then, "I think we should end up shutting it down, moving those prisoners. Those that we have reason to keep, keep. And those we don't, let go." Sixteen years later, he has indeed put in motion an interagency review to look into that detention facility's closing. Hopefully, once he receives its report, his administration can indeed begin to shut the notorious island prison down. (And this time, it could even work.)

It's true that, in 2021, the idea of shutting the gates on Guantánamo has garnered some unprecedented mainstream support. As part of his confirmation process, Secretary of Defense Lloyd Austin, for instance, signaled his support for its closure. And Congress, long unwilling to lend a hand, has offered some support as well. On April 16, 24 Democratic senators signed a letter to the president calling that facility a "symbol of lawlessness and human rights abuses" that "continues to harm U.S. national security" and demanding that it be shut.

As those senators wrote,

"For nearly two decades, the offshore prison has damaged America's reputation, fueled anti-Muslim bigotry, and weakened the United States' ability to counter terrorism and fight for human rights and the rule of law around the world. In addition to the $540 million in wasted taxpayer dollars each year to maintain and operate the facility, the prison also comes at the price of justice for the victims of 9/11 and their families, who are still waiting for trials to begin."

Admittedly, the number of signatories on that letter raises many questions, including why there aren't more (and why there isn't a single Republican among them). Is it just a matter of refusing to give up old habits or does it reflect a lack of desire to address an issue long out of the headlines? Where, for example, was Senate Majority Leader Chuck Schumer's name, not to mention those other 25 missing Democratic senatorial signatures?

And there's another disappointment lurking in its text. While those senators correctly demanded a reversal of the Trump administration's "erroneous and troubling legal positions" regarding the application of international and domestic law to Guantánamo, they failed to expand upon the larger context of that forever nightmare of imprisonment, lawlessness, and cruelty that affected the war-on-terror prisoners at Guantánamo as well as at the CIA's "black sites" around the world.

Still, that stance by those two-dozen senators is significant, since Congress has, in the past, taken such weak positions on closing the prison. As such, it provides some hope for the future.

For the rest of Congress and the rest of us, when thinking about finally putting Guantánamo in the history books, it's important to remember just what a vast deviation it proved to be from the law, justice, and the norms of this society. It's also worth thinking about the American "detainees" there in the context of what normally happens when wars end.

Prisoners Of War

Defying custom and law, the American war in Afghanistan broke through norms like a battering ram through a gossamer wall. Guantánamo was created in just that context, a one-of-a-kind institution for this country. Now, so many years later, it's poised to break through yet another norm.

Usually, at the end of hostilities, battlefield detainees are let go. As Geneva Convention III, the law governing the detention and treatment of prisoners of war, asserts: "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities."

That custom of releasing prisoners has, in practice, pertained not only to those held on or near the battlefield but even to those detained far from the conflict. Before the Geneva Conventions were created, the custom of releasing such prisoners was already in place in the United States. Notably, during World War II, the U.S. held 425,000 mostly German prisoners in more than 500camps in this country. When the war ended, however, they were released and the vast majority of them were returned to their home countries.

When it comes to the closure of Guantánamo, however, we can't count on such an ending. Two war-on-terror realities stand in the way of linking the coming end of hostilities in Afghanistan to the shutting down of that prison. First, the Authorization for the Use of Military Force that Congress passed right after the 9/11 attacks was not geographically defined or limited to the war in Afghanistan. It focused on but was not confined to two groups, the Taliban and al-Qaeda, as well as anyone else who had contributed to the attacks of 9/11. As such, it was used as well to authorize military engagements — and the capture of prisoners — outside Afghanistan. Since 2001, in fact, it has been cited to authorize the use of force in Pakistan, Yemen, Somalia and elsewhere. Of the 780 prisoners held at Guantánamo Bay at one time or another, more than a third came from Afghanistan; the remaining two-thirds were from 48 other countries.

A second potential loophole exists when it comes to the release of prisoners as that war ends. The administration of George W. Bush rejected the very notion that those held at Guantánamo were prisoners of war, no matter how or where they had been captured. As non-state actors, according to that administration, they were exempted from prisoner of war status, which is why they were deliberately labeled "detainees."

Little wonder then that, despite Secretary of Defense Austin's position on Guantánamo, as the New York Timesrecently reported, Pentagon spokesman John Kirby "argued that there was no direct link between its future and the coming end to what he called the 'mission' in Afghanistan."

In fact, even if that congressional authorization for war and the opening of Guantánamo on which it was based never were solely linked to the conflict in Afghanistan, it's time, almost two decades later, to put an end to that quagmire of a prison camp and the staggering exceptions that it's woven into this country's laws and norms since 2002.

A "Forever Prison"?

The closing of Guantánamo would finally signal an end to the otherwise endless proliferation of exceptions to the laws of war as well as to U.S. domestic and military legal codes. As early as June 2004, Supreme Court Justice Sandra Day O'Connor flagged the possibility that a system of indefinite detention at Guantánamo could create a permanent state of endless legal exceptionalism.

She wrote an opinion that month in a habeas corpus case for the release of a Guantánamo detainee, the dual U.S.-Saudi citizen Yaser Hamdi, warning that the prospect of turning that military prison into a never-ending exception to wartime detention and its laws posed dangers all its own. As she put it, "We understand Congress' grant of authority for the use of 'necessary and appropriate force' to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles." She also acknowledged that "if the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that [the] understanding [of release upon the end of hostilities] may unravel. But," she concluded, "that is not the situation we face as of this date."

Sadly enough, 17 years later, it turns out that the detention authority may be poised to outlive the use of force. Guantánamo has become an American institution at the cost of $13 million per prisoner annually. The system of offshore injustice has, by now, become part and parcel of the American system of justice — our very own "forever prison."

The difficulty of closing Guantánamo has shown that once you move outside the laws and norms of this country in a significant way, the return to normalcy becomes ever more problematic — and the longer the exception, the harder such a restoration will be. Remember that, before his presidency was over, George W. Bush went on record acknowledging his preference for closing Guantánamo. Obama made it a goal of his presidency from the outset. Biden, with less fanfare and the lessons of their failures in mind, faces the challenge of finally closing America's forever prison.

With all that in mind, let me offer you a positive twist on this seemingly never-ending situation. I won't be surprised if, in fact, President Biden actually does manage to close Guantánamo. He may not do so as a result of the withdrawal of all American forces from Afghanistan, but because he seems to have a genuine urge to shut the books on the war on terror, or at least the chapter of it initiated on 9/11.

And if he were also to shut down that prison, in the spirit of that letter from the Democratic senators, it would be because of Guantánamo's gross violations of American laws and norms. While the letter did not go so far as to name the larger war-on-terror sins of the past, it did at least draw attention directly to the wrongfulness of indefinite detention as a system created expressly to evade the law — and one that brought ill-repute to the United States globally.

That closure should certainly happen under President Biden. After all, any other course is not only legally unacceptable, but risks perpetuating the idea that this country continues to distrust the principles of law, human rights, and due process – indeed, the very fundamentals of a democratic system.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and author of the forthcoming Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump (Princeton University Press, August). Julia Tedesco helped with research for this piece.

Supplies Seem To Be Running Low At Guantanamo Prison

By Carol Rosenberg, Miami Herald (TNS)

MIAMI — Could the people at the Most Expensive Prison on Earth be pinching pennies?

Attorneys for the last 114 captives at the U.S. Navy base at Guantanamo Bay, Cuba, say they have been increasingly providing their clients with everything from T-shirts and socks and shoes to shampoo and vitamins to fill a long-term, unexplained need at the war on terror prison.

Lawyers who have visited the prison as recently as this month say the captives’ U.S. military issue uniforms are faded, torn or tattered and their shoes have holes. In other instances, detainees tell their lawyers, personal hygiene supplies are cheap and simply don’t do the job.

A case-in-point: When attorney Ramzi Kassem met detainee Shaker Aamer to share the news that the long-held Saudi prisoner was approved for transfer to Britain after Oct. 24, the captive was brought to their meeting in prison-issue canvas shoes held together by duct tape.

“Stuff’s just not getting replaced,” said attorney George Clarke who in late September spent about $300 on slip-on canvas shoes, plastic sandals, T-shirts and towels for his two detainee clients — both approved for repatriation, if the political situation improves in Yemen. “They say the stuff they get is crap. Or they’re not getting it.”

Recently, he said, the detention center staff has been more accepting of contributions from the attorneys, suggesting prison commanders are confronted with a cash crunch or have realized they can pass along costs of basics to the private sector.

At the prison, a spokesman declined to say whether the raggedy clothing reflected a new policy or budget cutbacks but dismissed a question on whether there was a supply issue. Detainee provisions “have not changed,” Navy Capt. Christopher Scholl said tersely by email.

The prison would not provide a list of what constitutes basic issue prisoner provisions these days. Nor would Scholl address a question about whether the quality of prison-issue items had degraded.

The International Committee of the Red Cross would not say whether delegates have raised the issue in confidential talks with the prison commander.

The Miami Herald spoke, separately, with 12 attorneys who have met captives in recent months and describe detainees showing up at legal meetings looking disheveled and needing replacement footwear or clothes. The attorneys say the appearance is noteworthy because through the years all but mentally ill captives have tried to tidy up for their legal meetings.

“They’re looking pretty threadbare,” attorney Cori Crider of the nonprofit Reprieve legal defense group said from the U.S. Navy base Tuesday after she bought shampoo and socks for one prisoner. “It’s an escalating complaint that people are being left in rags.”

The lawyers quote their clients as saying some supplies have disappeared entirely at the prison, which boasts Muslim sensitivity and humane treatment. Some just aren’t replaced frequently enough, they claim.

Into this vacuum attorneys who represent the detainees at no charge have for about nine months routinely spent hundreds of dollars on each trip to buy their clients basic provisions at the base commissary, the Navy Exchange, or NEX.

In March, Chicago attorney Patricia Bronte, a solo practitioner, spent $136.25 on shoes and Gold Toe socks for her two Yemeni clients. She left them with a prison lawyer, who got them to the clients after she left the base — something she knows because she got thank you notes via the prison’s legal mail system.

“I have noticed that sometimes the client appears at the meetings with shoes that look pretty beaten up. So I went to the NEX and I bought shoes and socks.” Also $6.12 in toothbrushes and toothpaste, according to her commissary receipt.

“Understand, I’m not complaining. I don’t mind buying my clients shoes to improve their conditions,” she said. “It’s the gall of this country. To detain these guys for little or no reason for 14 years and not provide them with shoes is offensive.”

Ramadan provided an early sign of the prison’s cutbacks: Detainees reported through their lawyers that the prison no longer offered lamb during feast break-fasts — something the military pointed to cited in past years as proof of its cultural sensitivity. The prison cultural adviser blamed “logistics” for its disappearance.

Prison officials had already stopped spending taxpayers’ money on books, videos and electronic games for the detainee diversion program, according to media visits in the past year, leaving it up to the Red Cross and lawyers to donate to the Detainee Library.

Kassem, the attorney, said his clients quoted guards and other prison staff as blaming budget cuts at the prison where the Pentagon presently maintains a 2,000-plus staff for 114 captives and has spent more than $5 billion.

“Sometimes it’s a problem of poor toiletries — soap that doesn’t lather, toothpaste that doesn’t froth, deodorant that doesn’t prevent body odor,” said Kassem, a professor at the City University of New York School of Law whose legal clinic represents five Guantanamo detainees. Captives he sees in the prison’s iconic orange prison uniform are wearing old, torn and much less orange jumpsuits, he said.

The prisoners are perplexed, said Kassem said. “They’ve heard how much it costs per prisoner. They wonder, where’s all the money?”

“Somebody’s pinching pennies, it seems,” he said, describing the prison-issue footwear on Aamer, the next detainee to be released, as “Oliver Twist tattered” despite repeated pleas for a replacement pair.

“He needs a new pair of shoes to go home in,” said Kassem said. “It would be too embarrassing for the United States to let him go home to the UK (United Kingdom) in those shoes.”

Attorneys say the detainees give different explanations for the personal hygiene requests. Some say the prison went generic recently and the quality degraded. Some of the more devout believe the prison-issue items contain non-halal ingredients forbidden by Islam. Others simply want something personal to break up the tedium of institutional life.

Over at the secret prison for former long-held CIA captives, Camp 7, the detainees are taking vitamin D furnished by defense attorneys Cheryl Bormann and Air Force Capt. Michael Schwartz.

Walid bin Attash spent years without exposure to sunlight in a so-called CIA black site before he got to Camp 7 in 2006. Now, he’s told his lawyers, his medical record shows a severe vitamin D deficiency. He asked his defense team for a halal version of the supplement, which the prison doesn’t provide. One attorney, who asked not to be identified, quoted a prison medical officer as telling detainees “there’s no money for that.”

So bin Attash’s lawyers ordered kosher vitamin D — no forbidden products in those gel caps — and gave it to the military staff attorney assigned to Camp 7. The prison’s medical officer has apparently doled them out to other former CIA black site captives because bin Attash needs a resupply sooner than a one-a-day distribution would require, Bormann said.

“We’ve been having to purchase vitamin D for our client,” says said Bormann, a criminal defense attorney with death penalty experience. “It’s crazy.” At a civilian prison, she said, the lawyers wouldn’t have to buy and furnish it. “They’d go to a federal or state judge, who would order the prison to provide it.”

Footwear and uniforms are a different issue. Lawyers report their clients showing up in faded, tattered and stained uniforms, demonstrating to them that the military is not replacing them. The same is true of the prison-issue black canvas shoes.

Lawyers willing to spend their own money on the clients say that, in response, the detention center has been much more liberal in accepting donations, particularly those purchased at the commissary.

It works like this: The lawyer buys the goods at the place where everybody on base shops and hands the commissary shopping bag over to a deputy military lawyer on temporary duty at the prison’s legal office. Each bag contains goods intended for a single detainee, along with a slip that lists the intended prisoner’s detention number and what’s inside. The military lawyer hands the bag to the guard force, which vets the contents for suitability.

(At the prison, spokesman Scholl said the prison’s legal division was using a longstanding process for accepting donated items.)

One attorney who asked not to be identified said he bought about a dozen soccer balls at the base commissary over several days, and later heard from a detainee they got through as “a gift from Allah.”

Lists of purchases provided by more than a dozen different attorneys include toothbrushes, toothpaste, bar soap, shampoo, deodorant, slip-on sandals that double as slippers, white socks, white T-shirts, towels, no-lace sneakers, canvas slip-on shoes, pillows, books, individual DVD players, video games and audio tapes and other printed media. Those reached the clients after a guard inspection — as did tahini, ginger, allspice, mint oil, mint tea, ginger tea, Nesquik, olive oil, ground cloves, henna and almonds, around Ramadan.

Lawyers also said they have submitted other items that were rejected — notably black socks, hairbrushes, combs and aftershave (probably for its taboo alcohol content).

The prison’s common rule, according to several attorneys is, no duplicates. That means, a captive who gets a new bottle of shampoo must exchange it for the one in his cell.

(c)2015 Miami Herald. Distributed by Tribune Content Agency, LLC.

A display for visitors shows some supplies a detainee is issued at the prison at the U.S. Navy base at Guantanamo Bay, Cuba, on Tuesday, Nov. 4, 2014 in this photo approved for release by the U.S. military. (Walter Michot/Miami Herald/TNS)