It seems like an eternity since there was the briefest of hopes that George W. Bush’s "war on terror" prison at Guantánamo would be shut down. That was in January 2009, but although Barack Obama issued an executive order promising to close Guantánamo within a year, he soon reneged on that promise. He failed to stand up to Republican critics who seized on the fear of terrorism to attack him and he failed to stand up to members of his own party who were fearful of the power of black propaganda regarding Guantánamo and the alleged but unsubstantiated dangerousness of its inmates.

The president himself also became fearful when, in January 2010, the Guantánamo Review Task Force, which he himself had appointed and which consisted of career officials and lawyers from government departments and the intelligence agencies, issued its report (PDF) based on an analysis of the cases of the 240 prisoners inherited from George W. Bush. The Task Force recommended that, of the 240 men held when Obama came to power, only 36 could be prosecuted. Forty-eight others were regarded as being too dangerous to be released, even though insufficient evidence existed to put them on trial.

The rest, the Task Force concluded, should be released, although it also advised that 30 of those 156 men — all Yemenis — should continue to be held in "conditional detention," dependent on there being a perceived improvement in the security situation in Yemen.

There were severe problems with the Task Force’s recommendations, particularly regarding the 48 prisoners deemed to be too dangerous to be released despite the lack of evidence against them, because detention without charge or trial is unacceptable under any circumstances. Also troubling, however, was the Task Force’s invention, without reference to Congress, of "conditional detention," a detention category that it had invented.

Nevertheless, it was reasonable to assume, when the Task Force’s report was issued, or at the latest in May 2010, when it was made public, that 36 men would soon be put on trial and 126 others released. That would allow the status of the 48 others to be the focus of intense scrutiny.

That, of course, never happened. Plans to try the men faltered when the administration fudged the issue, opting for both federal court trials and an updated version of the military commissions that Dick Cheney had first revived in November 2001. In an announcement made in November 2009, Attorney General Eric Holder stated that five men accused of involvement in the 9/11 attacks would be tried in New York City. However, a backlash first derailed New York as a trial venue and then derailed the entire notion of federal court trials for Guantánamo prisoners, despite the successful prosecution and conviction of Ahmed Khalfan Ghailani, the one man the Obama administration managed to transfer from Guantánamo to the mainland. An associate of the 1998 African Embassy bombings, he was convicted in November 2010 and given a life sentence, to be served in a Supermax prison on the U.S. mainland, in January 2011.

With the only option after Ghailani’s conviction being military commission trials at Guantánamo, a version of the charade that had dominated the Bush years resumed. To date only four prisoners — Ibrahim al-Qosi, Noor Uthman Muhammed, Omar Khadr, and Majid Khan — have seen their cases proceed to trial, although in each case a plea deal was negotiated. Still outstanding are the cases of the 9/11 Five and Abd al-Rahim al-Nashiri, the supposed mastermind of the bombing of the USS Cole in 2000. Last month the Pentagon announced that another man, Ahmed al-Darbi, tortured in "black sites" before his transfer to Guantánamo, would also be charged, but that makes only 11 men of the 36 recommended for trials by Obama’s Task Force.

On the 11th anniversary of the 9/11 attacks, it is fair to wonder whether justice will ever be delivered — and seen to be delivered — in their cases. Arguably the situation is even bleaker for the 48 men designated as being too dangerous to be released. Back in March 2011, Obama formalized their ongoing detention without charge of trial through an executive order, but although he promised periodic reviews of their cases, no evidence has emerged to indicate that any reviews have actually taken place.

With trials delayed for most of those recommended for trials and with the president’s decision to hold 48 men indefinitely regarded as unacceptable by human-rights activists and lawyers, the only area in which progress can be made ought to be in securing the release of the 87 men cleared for release — including the 30 in "conditional detention." However, Congress passed legislation imposing restrictions on releasing prisoners. Moreover, Obama capitulated to pressure following a failed bomb plot on Christmas 2009 by Umar Farouk Abdulmutallab, a Nigerian recruited in Yemen, to ban the release of any cleared Yemeni prisoners. He issued a moratorium in January 2010 that still stands two years and eight months later.

All of that is in spite of the fact that 58 of the 87 cleared prisoners are Yemenis, and in spite of the fact that many of those men were first cleared by military review boards under George W. Bush between five and eight years ago, and in spite of the fact that holding them indefinitely constitutes a type of guilt by nationality that is an insult to all notions of justice, and to the Yemeni people as a whole. For the 168 men still held — those cleared but not released, those designated for trials but not tried, and those being held without charge or trial — American justice has failed so many times that it is appropriate to conclude, on the 11th anniversary of 9/11, that the overwhelming majority of them are being held as political prisoners — and that ought to be a source of great sadness and shame.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at www.andyworthington.co.uk.

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