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11 Years on …An indelible stain on America’s justice

by Jennifer Castello

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January 14, 2014

In September 2012, it had been 11 years that the US and its allies embarked on the so called War on Terror and last week the Guantanamo Bay prison celebrated its 11 years anniversary, when the first of the nearly 800 detainees stepped a foot on the Cuban soil. Even though in 2009 newly elected President Obama had pledged for its imminent closure, Guantanamo is still open to this day and just a year after his pledge, Obama accepted the Nobel Peace Price, which I am sure detainees in Guantanamo were thrilled about. This was four years ago and since then, President Obama has not only institutionalized Guantánamo and all the horrors it represents, but he has initiated new extrajudicial killing programs, like the drones program always justified by the struggle democracies are delivering against evil to eliminate terrorism.

GITMO as it is called remains open with unfortunately no end in sight. Numbers speak for themselves. 166 individuals are still incarcerated, including 12 of them which have been there since the very first day. 779 is the number of detainees that have been incarcerated in GITMO overall, including 21 minors at least. 13 is the age of the youngest individual held on the base and 98 is the age of the oldest. 46 is the number of detainees designated for indefinite detention as authorised by the Obama administration in March 2011. 532 is the number of individuals that has been released under the Bush administration and 72 is the number of persons released under Obama’s. 6 detainees are currently facing the possibility of death sentences before military commissions’ trials that do not meet international fair trial standard. 86 of the 166 remaining detainees have been cleared for release by the Guantanamo Task Force such as Shaker Aamer, the last Briton still incarcerated. 13 is the number of detainees that were amputated because of lack of medical treatment as Adel-al-Jazzar mentioned in an interview he gave to CagePrisoners. 9 is the number of prisoners that have died while in Guantanamo, the latest being the Yemeni Adnan Farhan Abdul Latif that was found dead in his cell in September 2012. He had been held there for 10 years, 7 months and 25 days. The cause of death as reported by the US authorities is suicide…

Is death the only way out of GITMO?

Obama repeatedly has made it crystal clear. In line with his predecessor’s policies, in 2010 a justice task force concluded that 50 detainees should remain in prolonged detention as the administration found them too dangerous to release but unprosecutable because of the fear that trials could compromise intelligence-gathering. A year later, on 7 March 2011 President Obama signed an executive order making a number of changes to policies regarding those detained in Guantanamo. In a reversal of his previous policy, the order resumed military trials and also established a "periodic review" process for long-held Guantanamo detainees, who have not been charged, convicted or designated for transfer, "but must continue to be detained because they in effect, remain at war with the United States". This is otherwise called "indefinite detention" without charge or trial.

Such legislation violates basic principles of due process as if the whole institution was not enough. What was the plan for those individuals – holding them until they die? No trial or charges brought against them in a court of law with proper access to a lawyer and all the rights that are normally due to a suspect or an accused in a country that respects due process and that has ratified international conventions on human rights. Just laying those words sounds like this is some kind of bad sci-fi movie. How can a democracy such as the US have let itself down like this – stepping on its most ancient and basic principles that built the whole nation?

One other great obstacle to the closing of Guantanamo is one that the President created himself in 2010, which was the refusal to transfer any prisoner to Yemen because of the  "unsettled situation" in this country. It looks that those individuals are kept in detention solely because of their nationality, which not only violates international conventions but also raise the question of why not send those detainees to third countries willing to take them on. Considering that an "unsettled country" gives a good reason to keep people in jail on no charges at all. Moreover, most of those Yemenis have been cleared for release and official documents have shown that they were not involved in any kind of illegal activity. That kind of "punishment" is very disturbing especially when knowing the detrimental repercussions it has on many lives.

Just a few days ago, Obama has shown again as if necessary his continued political will to keep the status quo as far as GITMO is concerned. He has signed on 3 January 2013, the National Defence Authorization Act (NDAA), a federal law which is passed every year; it defines the budget and expenses of the U.S. Department of Defence. By far the most controversial provision of this law allows for indefinite imprisonment, or as Obama calls it "prolonged detention" by conceding to another round of transfer restrictions that constrain his ability to repatriate detainees home, to resettle them in third countries, or to prosecute them domestically in federal courts.  Originally set to expire on 27 March 2013, the transfer restrictions will remain in place for another year. It means that the 86 men cleared for released will have to wait … as for the other remaining detainees some of them are being charged and prosecuted before the Trial commissions and some others are simply waiting for the authorities to see if they can charge them of any crimes, and finally some of them have been simply declared to be subject to indefinite detention without charge or trial. President Obama, signing this act has made sure that Guantanamo is not yet to be closed, breaking another promise. What a good way to start his second mandate…

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:: Article nr. 94352 sent on 15-jan-2013 21:24 ECT

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