A guard tower overlooks the prison at Camp Delta in Guantanamo Bay, Cuba. (Photo: Richard Perry / The New York Times)
November 9, 2013
During the summer, the Guantanamo hunger strike and use of force-feeding put the US naval base in Cuba back into headlines. The strike even prompted President Barack Obama to reiterate his promise to close the prison. However, an official "end" to the hunger strike last month, coupled with the government shutdown and fiscal fights in Congress, made Guantanamo virtually invisible from public attention as it was before. Despite lax attention, the system that made Guantanamo so odious continues.
Continued Hunger Strike and Aamer Appeal to End Force-Feeding
The US military says the hunger strike at Guantanamo, which lasted more than six months and aimed to end the injustices within the prison, is officially over. The military has stopped issuing daily updates of the number of strikers. The Miami Herald, however, hasn't stopped. According to its numbers, 14 are still on hunger strike, all of whom are being force-fed. Force-feeding involves shoving a tube up a person's nose and down into their stomach to feed them. Doctors and human rights advocates say the process violates medical ethics and amounts to torture.
One of the remaining hunger-strikers, Moath al-Alwi, a Yemeni national who has been in Guantanamo since 2002, is one of the four dozen prisoners designated for indefinite detention. He wrote an article that was published in Al-Jazeera America and translated into English from Arabic by his attorney Ramzi Kassem. Al-Alwi writes that he still is being force-fed, which gives him "bouts of violent vomiting" and "sharp pains in my stomach and intestines." He says the "U.S. military prison staff's intent is to break our peaceful hunger strike." Like many prisoners, al-Alwi has been subjected to invasive body searches by prison guards. Al-Alwi explained that some prisoners ended their hunger strike because of the "brutal force-feeding practices and the cruel punishment inflicted by the prison guards and military medical staff." Others did so because they wanted to give Obama more time to close the prison. Some of the remaining strikers weigh as little as 67 pounds. Despite this, al-Alwi proclaims, "We will remain of hunger strike. We pray that the next thing we taste is freedom. ... May God continue to sustain us all until we achieve our goal of justice."
Presently, 164 people are detained in the Guantanamo prison, most of whom are low-level fighters captured overseas. Of those, 84 are cleared for release, more than four dozen are being held indefinitely - deemed too difficult to prosecute because there is not enough evidence to try them or evidence is inadmissible because it was produced through torture. Yet the government considers them too dangerous to release, and about 20 can be "realistically prosecuted," according to Guantanamo chief prosecutor Brig. Gen. Mark Martins. According to the New America Foundation, the recidivism rate of Guantanamo detainees is around 4 percent, meaning very few detainees return to militant activities once released.
Lawyers for Shaker Aamer, a Saudi national and British resident, Syrian national Abu Wa'el Dhiab, and Algerian citizen Ahmed Belbacha, in an appeal, are urging a federal court in Washington, DC, to halt the force-feeding of their clients. The lawyers say the practice is unlawful, "inhumane, degrading and a violation of medical ethics." The appeal follows a district court decision in July that denied an order that could have ended force-feeding. Aamer, held in Guantanamo since 2002 and cleared for release by former President Bush, is the only British resident left in the prison. Palina Prasasouk, an organizer with Witness Against Torture, in an email, describes Aamer as "the Martin Luther King of Guantanamo Bay." He is a "leader" among Guantanamo detainees and has made an impression on some guards. Former Guantanamo chaplain James Yee told Prasasouk that "guards like him," referring to Aamer. "If it were not for Aamer," Prasasouk said, "we may not have known about the hunger strike after the government's denial of such a protest."
Aamer's activism may be the reason why he's still in Guantanamo, despite having been cleared for release in 2007. Binyam Mohamed, an Ethiopian national and British resident who was detained in Guantanamo from 2004 to 2009 and stayed in a cell one door down from Aamer's, gave his theory of why Aamer remains there. "I would say the Americans are trying to keep him as silent as they could. It's not that he has anything. What happened in 2005 and 2006 is something that the Americans don't want the world to know – hunger strikes, and all the events that took place, until the three brothers who died ... insider information of all the events, probably. Obviously, Shaker doesn't have it, but the Americans think he may have some of it. And they don't like this kind of information being released." In 2006, three detainees "were all found hanged in their cells with cloth gags stuffed in their mouths" in an apparent suicide, according toThe Independent. Aamer alleged that he also was gagged and beaten by guards on the same night but survived.
Clive Stafford Smith, Aamer's lawyer, argued similarly, "I have known Shaker for some time. Because he is so eloquent and outspoken about the injustices of Guantanamo., he is very definitely viewed as a threat by the US. Not in the sense of being an extremist, but in the sense of being someone who can rather eloquently criticize the nightmare that happened there." Libyan citizen and former Guantanamo detainee Omar Deghayes said of Aamer, "He was always forward. He would translate for people. He'd fight for them. And if he had any problems in the block, he'd shout at the guards ... until he would get you your rights. And that's why he's still in prison ... because he's very outspoken, a very intelligent person, somebody who would fight for somebody else's rights."
"Closing" Guantanamo, Preserving Indefinite Detention
In May 2013, Obama renewed his promise to shut down the Guantanamo prison. Pentagon spokesman Marine Lt. Col. Todd Breasseale told Truthout that the US military "remains committed to the president's oft-stated goal of closing the detention facility at Guantanamo Bay and responsibly transferring those eligible." To do so, the Obama administration appointed two special envoys to oversee the process. In June, Attorney Clifford Sloan was appointed to be the State Department envoy to Guantanamo. Recently, Paul Lewis, a Congressional committee attorney and former Marine Corps judge advocate, was appointed by Defense Secretary Chuck Hagel to be the Pentagon's Guantanamo envoy.
Despite Obama's pledge to "close" Guantanamo, the rhetoric obscures his actual policy. In May 2009, months after stepping into office, the Obama administration endorsed indefinite detention of Guantanamo detainees, earning the consternation of human rights groups who took his pledge to close Guantanamo seriously. Months later, Obama ordered the federal government to purchase a prison in Thomson, Illinois, to hold Guantanamo transfers.
Indefinite detention (sometimes also called administrative or preventive detention) is when a government or law enforcement agency incarcerates a person without a trial for an indefinite amount of time - days, weeks, months, even years. Under international human rights law, this practice is illegal. However, many states practice indefinite detention. Israel indefinitely detains Palestinians in the Occupied Territories. China, Syria, Malaysia, Singapore and the United Kingdom have indefinite detention laws, as well. The United States embraced indefinite detention once the war on terror began as a means to imprison suspected terrorists captured around the world.
In 2012, the Obama administration signed the National Defense Authorization Act (NDAA), which contains sections (1021 and 1022) allowing the US military to indefinitely detain anyone, including US citizens who are "a part of or substantially supported al-Qaeda, the Taliban or associated forces." Obama reauthorized the government's indefinite detention powers when he signed the 2013 NDAA. Thus, Obama's plan to "close" Guantanamo means transferring the system of indefinite detention from the US penal colony in Cuba to American soil.
There have been challenges to the government's indefinite detention powers, many unsuccessful. Journalist Chris Hedges - joined by whistleblower Daniel Ellsberg, dissident intellectual Noam Chomsky, independent journalist Alexa O'Brien, Occupy London activist Kai Wargalla, Jennifer "Tangerine" Bolen of RevolutionTruth, Icelandic Parliament member Birgitta Jónsdóttir and professor Cornel West - sued the Obama administration over the NDAA's indefinite detention clauses. They argued that the broad language in the sections threaten journalists who interview militant groups overseas as part of their news reporting and people engaged in constitutionally protected dissident activism. Judge Katherine Forrest sided with Hedges in the Southern District Court of New York and issued an injunction against section 1021 of the NDAA in May 2012. However, the Obama administration appealed the decision and, this past July, won.
This squares with the New Republic's recent reporting on how difficult it is for former Guantanamo detainees to sue the government for damages arising from unlawful detention. Even in situations where courts easily could have allowed damage lawsuits, particularly when Congress provided "cause of action" - a set of facts justifying a right to sue - courts went out of their way to throw out the cases. For example, while the Foreign Intelligence Surveillance Act (FISA) allows lawsuits brought by those whose communications were intercepted illegally, the 9th Circuit Court of Appeals dismissed such a lawsuit by the Islamic charity Al-Haramain Islamic Foundation Inc. when it challenged "allegedly unlawful governmental surveillance" under FISA, according to the New Republic. In multiple cases, "ranging from Guantanamo to surveillance to 'extraordinary rendition' and torture," the New Republic mentioned, "the federal courts have been categorically hostile to damages claims arising out of post-September 11 counterterrorism policies."Rather than address the "underlying legality" of the government's counterterrorism policies, courts have relied on "a host of procedural doctrines to reject the plaintiffs' claims."
Because courts have been ineffective in challenging federal government counterterrorism policies, states provide another avenue for challenges. For example, California recently passed a bill, AB 351, rebuking the federal government's indefinite detention powers. Under the bill, which had strong bipartisan support, the state refuses to support the "indefinite detention of a person within California" and prohibits state funding to aid implementation of the NDAA. This proactive measure makes it harder for the federal government to enforce indefinite detention in California, should such an event happen. Alaska and Virginia passed similar legislation, although did not go as far as California's bill in barring state funds from being used to implement indefinite detention.
Can Prison Continue After War's "Declared End"?
The 2014 withdrawal of US combat troops from Afghanistan also poses a challenge to holding people at the US prison at Guantanamo Bay. The Washington Postreports that some administration officials "believe the war's declared end could force a reckoning over the detention of more than a dozen Afghan Taliban members captured on the battlefield, allowing them to lodge new appeals to the federal courts."
Guantanamo detainees are held under a quasi prisoner-of-war status in the global war on terror. The legal underpinning of that is the Authorization for Use of Military Force (AUMF), a bill passed by Congress after 9/11 that allows the United States to use military force against those who "planned, authorized, committed or aided" the 9/11 terrorist attacks or are suspected of plotting new ones. This makes the AUMF the legal linchpin for, or declaration of, the global war on terror. It's been used by former President George W. Bush and Obama to justify the war in Afghanistan and covert actions, including drone strikes, in Pakistan. But the Obama administration has stretched it to include "associated forces," those with a "co-belligerent" relationship with Al Qaeda and the Taliban, even if such "associates" did not exist when 9/11 happened. Should the war in Afghanistan - or broader war on terror - end, then that makes it hard to detain people, captured from countries such as Afghanistan or Yemen, as "belligerents" or "enemy combatants."
There is also the question of where to hold detainees who are being tried in military commissions, including the suspected 9/11 plotters and the four dozen men held in indefinite detention. Congress has blocked funding to transfer Guantanamo detainees to US prisons. Breasseale explained that "until Congress changes the laws they have put into place" that make transfers difficult, the "detainees will remain here" in Guantanamo. This includes detainees held under "law of war" or indefinite detention.
In his May 2013 counterterrorism speech, Obama expressed his desire to "refine and ultimately repeal" the AUMF. However, his administration has taken no concrete steps to make that happen. Moreover, that previous week, the Senate Armed Services Committee held a hearing on whether to reauthorize the AUMF. At the hearing were the Obama administration's top Pentagon officials, including Michael Sheehan, assisting secretary of defense for special operations and low-intensity conflict, and acting general counsel Robert Taylor. Taylor said the Obama administration would face "difficult questions" about what to do with detainees if the global war on terror ended. But he also added that, after World War II, the US continued to "hold some people for several years as part of a general mopping-up authority" under the fear that they would upset the "delicate situation" in post-war "Germany and elsewhere," although their detention was not indefinite. While the circumstances differ from World War II, this statement sounds similar to justification for holding dozens of individuals captured in the war on terror under indefinite detention, namely, that while it is difficult to prosecute them, they are also too dangerous to release.
Congressman Adam Schiff, a Democrat from California, authored a bill to repeal the AUMF and echoed similar thoughts. Schiff told the Huffington Post, "There will be a need for continued detention, even after the expiration of the AUMF," also citing World War II precedent. While he favors closing the Guantanamo prison, he added "I don't know that the authority to detain enemy combatants would end with AUMF." Therefore, ending the AUMF would not necessarily mean an end to indefinite detention.
Despite Obama's claim to want to "refine and ultimately repeal" the AUMF, his administration is fine with it as is. In the hearing, Sheehan said, "at this point, we're comfortable with the AUMF as it is currently structured … for our war against Al Qaeda, the Taliban and their affiliates, the AUMF serves its purpose." He later added that the president "has many other authorities … that he could use that he used prior to AUMF to deal with any other threats to our national security, "which would apply if the AUMF were repealed or inapplicable." This includes interpreting the laws of war to justify attacking Al Qaeda and other suspected terrorists. Senator Tim Kaine, a Virginia Democrat, made a similar point,vsaying if "Congress retracted the AUMF … there would still be the international law of war and other doctrine that the President and Congress could operate under." So should the AUMF be repealed, the government could twist other laws to justify continuing its perpetual war.