The Sins of America’s Forever Prison
There can be little question that the grim prison at Guantánamo Bay, Cuba, which still shows no sign of closing anytime soon, is a key legacy — in the worst sense imaginable — of America’s post-9/11 forever wars. I’ve been covering the subject for decades now and that shameful legacy has never diminished.
Last month, in response to a column I wrote for TomDispatch — one of dozens, I’m sad to say, that I’ve done on Guantánamo over these endless years — I received a surprise email: an invitation to attend a meeting at the British Parliament. A group known as the All Party Parliamentary Group (APPG) for Closing the Guantanamo Bay Detention Facility, formed this April, was gathering for the second time. Its stated purpose is “to urge the U.S. administration to close the Guantánamo Bay detention facility, to ensure the safe resettlement of those approved for release, and to ensure that due process is expedited for all the remaining prisoners.” Nine members of the House of Parliament and four Members of the House of Lords have already joined the group.
Thirty men remain in custody at that infamous American prison in Guantánamo Bay, Cuba. Sixteen of those detainees have finally been cleared for release; they are, that is, no longer subject to criminal charges or considered a potential danger to the United States and yet they still remain behind bars. Three other prisoners have never either been charged with a crime or cleared for release. Ten more are still facing trial, while one has been convicted and remains in custody there. For the APPG, the release of those 16 cleared detainees is a paramount goal.
That meeting I attended included a handful of MPs from all parties, as well as leading figures from British organizations that have been supporting justice for Guantánamo’s detainees for decades. Also present were two former detainees. One was Moazzem Begg, among the first prisoners released in 2005 and repatriated to England, where he is now a senior director at CAGE, an advocacy group focused on the remaining Gitmo detainees. In 2006, he published Enemy Combatant: My Imprisonment at Guantanamo, Bagram, and Kandahar, an early account of the injustices and cruelties in America’s war-on-terror prisons. The other was Mohamedou Salahi, whose book Guantánamo Diary led to the dramatic film The Mauritanian about his life at that infamous prison. A third former detainee, Mansoor Adayfi, author of Don’t Forget Us Here, had been transferred from Gitmo to Serbia in 2016. Though invited to attend, his visa wasn’t approved in time.
That meeting was but one of several recent events in which organizations outside the United States have issued detailed impassioned calls for this country to finally address the ongoing nightmare it created so long ago at Guantánamo.
Site Visits and U.N. Reports
In April, Patrick Hamilton, the head of the International Committee of the Red Cross (ICRC), made a site visit to Guantánamo and issued “a rare statement of alarm.” It was, as New York Times reporter Carol Rosenberg pointed out, the ICRC’s 146th visit to the prison since it opened in January 2002. That short statement urged American officials to address the deteriorating health of the prisoners there, concluding, “The planning for an aging population,” it concluded, “cannot afford to wait.”.
Then, in mid-June, the U.N. Human Rights Council followed up its own site visit by issuing a comprehensive, devastatingly critical report. Fionnuala Ni Aoláin, that council’s special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, focused on the potential war crimes and “crimes against humanity” committed against the detainees during and after their time at that island prison, now in its 21st year of existence.
Ni Aoláin was the perfect person for the job. She’s long defended human rights and international law, with a particular focus on issues of justice and human dignity. In 2013, she co-edited Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective. Her 2023 report, clear, fact-based, and measured in tone, is in many ways a step above that of any of its predecessors.
Hers was, of course, anything but the first U.N. report to address the sins of Guantánamo. In 2010, the U.N. Human Rights Council prepared a detailed report on “global practices in relation to secret detention in the context of countering terrorism.” It focused on violations of international law carried out globally, often involving exceptionally cruel treatment and outright torture. Alongside sections on countries throughout Africa and the Middle East that abused captives, the torture and misuse of prisoners in the American war on terror at CIA black sites around the world and Guantánamo Bay took center stage. The study focused special attention on the lack of accountability when it came to Americans who had implemented or abetted the mistreatment and secret detention of prisoners.
Twelve years later, in March 2022, Ni Aoláin, five years into her role as special rapporteur wrote a follow-up to the report, highlighting “the abject failure to implement the recommendations” of that study and the “tragic and profound consequences for individuals who were systematically tortured, rendered across borders, arbitrarily detained, and deprived of their most fundamental rights.” Her update “reiterates the demand that accountability, reparation, and transparency be implemented by those states responsible for these grave human rights violations.”
Now, she has issued her new 23-page report, adding significantly to the debate over liberty and security that has defined discussions over Guantánamo since its birth in January 2002.
A Singular Report
A notable distinction between this report and those that preceded it is the access the special rapporteur was granted by the Biden administration. It was, in fact, the first visit ever to Guantánamo by an independent U.N. investigator. After two decades in which administration after administration placed severe restrictions on journalists as well as non-governmental and international organizations when it came to covering that prison, the Biden administration granted Ni Aoláin remarkably full access “to former and current detention facilities and to detainees, including ‘high value’ and ‘non-high value’ detainees.”
The interviews she conducted with those still imprisoned there were both confidential and unsupervised. She was allowed to deal with “military and civilian personnel, military commission personnel, and defense lawyers.” She also “interviewed victims, survivors, and families of victims of the September 11, 2001 terrorist attacks, former detainees in countries of resettlement or repatriation, and human rights and humanitarian organizations.” Ni Aoláin commended the Biden administration for allowing such unprecedented access. “Few states.,” as she puts it, “exhibit such courage.”
In the process, she drew a uniquely sweeping picture of Guantánamo — from the period after the horrifying 9/11 attacks through the widespread and gruesome torture of prisoners at CIA black sites to the grim details of detention at Gitmo itself to the often unjust and harmful fates of the detainees who were finally released to the persistent challenges that lie ahead. It’s the first report to tie together, historically as well as legally, the many grim pieces of the post-9/11 story that have previously been underappreciated.
Like its predecessors, Ni Aoláin’s report reiterates the sins of Guantánamo: the physical and psychological abuse and outright cruelties committed there and the lack of any access to justice for its prisoners. She also reminds us that “the vast majority of the men rendered and detained there were brought without cause and had no relationship whatsoever with the events that took place on 9/11.” She calls out the United States for its widespread ongoing violations of human rights and international law and mentions numerous times that the way it dealt with its detainees amounted to “cruel, inhuman, and degrading treatment.”
Her report, however, also potentially shifts the never-ending discussion of Guantánamo to new ground.
Putting the Focus on the Prisoners
As a start, Ni Aoláin looks beyond policymaking to the more subtle forms of injustice and harm that became the daily essence of Guantánamo. She particularly focuses on what she calls the “arbitrariness” and the damage it has caused. “Arbitrariness,” she concludes, “pervades the entirety of the Guantánamo detention infrastructure,” leading to a persistent lack of predictability in treatment. While Standard Operating Procedures (SOPs) do exist when it comes to “detainee reception and transfer, restraints, cell block searches, mess operations, religious accommodations, and medication distribution,” the deeper reality has been one of constant, cruel, and unpredictable deviations from those SOPs.
In fact, “arbitrariness, confusion, and inconsistency” define life at Guantánamo and have only been exacerbated by the secrecy with which those SOPs are guarded, further intensifying the cruel and inhuman treatment that has always defined that prison. Ni Aoláin suggests that it’s finally time for transparency to come to Gitmo. For example, many of the detainees suffer from the long-term effects of torture, a past all too lacking in transparency, and neither they nor their lawyers have access to their unclassified medical files.
She underscores her focus on finally bringing humanity to Gitmo by arguing that the widespread abuses Americans committed over the years, including by setting up a prison offshore of American justice, also significantly impacted the families of those who were killed in the attacks of September 11, 2001. She begins with torture, suggesting “that the systematic rendition and torture at multiple (including black) sites and thereafter at Guantánamo Bay, Cuba — with the entrenched legal and policy practices of occluding and protecting those who ordered, perpetrated, facilitated, supervised, or concealed torture — comprise the single most significant barrier to fulfilling victims’ rights to justice and accountability.” In her view, the use of torture was “a betrayal of the rights of victims,” too, by making the holding of trials impossible to this day and so making both accountability and closure inconceivable for the victims’ families.
While widening the lens to include a larger pool of victims, Ni Aoláin also widens the time frame. The mistreatment of detainees at Gitmo, she emphasizes, continues to this day. “Regrettably,” she writes, “the vast majority of detainees continue to experience sustained human rights violations beginning with the very process of transfer to the country of return or resettlement.”
In fact, the transfer of former prisoners from that prison to countries like the United Arab Emirates (UAE), Serbia, Kazakstan, and Slovakia has often resulted in yet more degradation, including utter social ostracism, the inability to obtain work, or even additional transfers to countries where yet more cruel and inhuman treatment has subsequently occurred. Sadly, for those “released” from that prison, the term “Guantanamo 2.0” best describes their situations.
One case in particular has been a focal point for the APPG in London: Ravil Mingazov, a Russian citizen granted asylum in Great Britain. He was captured in Pakistan in 2002. Accused of being associated with al-Qaeda and the Taliban, he would then be transported to Gitmo where he remained until 2017 when he was cleared for release to the UAE. After his arrival there, however, he was again imprisoned, despite assurances that his release would include rehabilitation and support for rebuilding his life. He’s now been detained there for six years. In 2021, reports circulated that the UAE was trying to send Mingazov back to Russia, where he would face probable imprisonment and mistreatment. To make matters worse, for the past two years, his family has had no news of him.
Ni Aoláin also highlights American attempts to destroy certain parts of Guantánamo and so functionally erase the record of what went on there. She calls instead for “the preservation and access to both prior and present detention sites,” as well as medical records and digital evidence. The crimes committed at Guantánamo, she emphasizes, need to be kept on the record and addressed, adding that “the U.S. government has an ongoing obligation to investigate the crimes committed [there], including an assessment of whether they meet the threshold of war crimes and crimes against humanity.”
Worse yet, redress for the victims of the 9/11 attacks and their families remains lacking. They continue to need treatment in ways not provided for and she recommends a “comprehensive audit of existing medical support (physical and psychological) for victims and survivors” and a commitment “to comprehensive lifelong holistic support for survivors.”
Succinct, measured, and profoundly disturbing, her report calls for a way forward that directly addresses the crimes of the past, including the need for public apology, compensation to former detainees, and the shutting down of that infamous prison. Her message: after all these years, even decades, the harm and the crimes associated with Guantánamo are still unending.
Where We Are Now
While the U.N., the ICRC, the British Parliament, and various nongovernmental organizations focus on Guantánamo’s sins and its painful legacy, the United States continues to fail to close the prison, even though the need for closure was acknowledged in 2006 by no less than its “founder,” President George W. Bush. On July 14th, when the House passed its version of the latest National Defense Authorization Act, it not only kept in place a prohibition on the use of funds to close Guantánamo but extended a congressional ban on using such funds to transfer detainees to the United States or six countries in the greater Middle East, making the end of Gitmo that much harder.
With her steady hand and deployment of facts, Ni Aoláin was unsparing in her conclusions about the injustice and perpetual cruelty that still is Guantánamo. Yes, she appreciates any movement forward, even at this late date, including “the openness and willingness” of the Biden administration to allow her to visit the prison. Still, she couldn’t be clearer on what, 21 years later, is needed: accountability for the perpetrators and restitution for the victims.
Closing the prison, if it ever actually happens, will not be enough. Sadly, even such an act will not bring true closure to the sins of America’s forever prison.
(Karen J. Greenberg is the Director of the Center on National Security at Fordham Law. She is the author of “The Least Worst Place: Guantanamo’s First 100 Days” (2010). She is also the co-editor of “The Torture Papers: The Road to Abu Ghraib” (2005). Courtesy: TomDispatch, a web-based publication, founded and edited by Tom Engelhardt, aimed at providing “a regular antidote to the mainstream media”.)
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Closing Guantanamo?
For 18 years, I’ve been writing articles on the never-ending story of the Guantánamo Bay Detention Facility. And here’s my ultimate takeaway (for the moment): 21 years after that grim offshore prison of injustice was set up in Cuba in response to the 9/11 attacks and the capture of figures supposedly linked to them, and despite the expressed desire of three presidents — George W. Bush, Barack Obamaand Joe Biden — to close it, the endgame remains devastatingly elusive.
At times due to a failure of will, at times due to a failure of the system itself or the sheer complexity of the logistics involved, and at times due to acts of Congress or the courts, efforts to shut that prison have been eternally stymied. Despite endless acknowledgements that what’s gone on there has defied domestic, international, and military law — not to mention longstanding norms of morality and justice — that prison persists.
Recently, however, for those of us perpetually looking for a ray or even a glimmer of hope, there have finally been a few developments that seem to signal steps, however tiny, toward closure.
There are still 30 detainees at Guantánamo. Sixteen of them have been deemed no longer threats to the United States and cleared for release, but arrangements have yet to be made to transfer them to another country. Three others are considered too dangerous for release. And eleven have been charged in the military commissions system that was set up in 2006 and revised under President Obama in 2009. One, Ali Hamza Ahmad Suliman al-Bahlul, has been convicted. Another, Abd al-Hadi al-Iraqi, recently pleaded guilty. Now, nine detainees face trials in three separate cases. All of them were tortured at CIA “black sites” for different periods of time between 2003 and 2006.
Progress in the Biden years has been occurring, even if at a snail’s pace. His administration has said that it intends to close Guantánamo by the end of his term. And in the last two and a half years, it has indeed reduced the population from 40 to 30, the most recent transfer of a freed prisoner to another country occurring this April. In addition, the Biden administration increased the total number of remaining detainees eligible for release from six to its current 16.
Arranging such transfers has proven painstaking work, requiring complex negotiations with foreign countries, as well as assurances to American officials — and ultimately Congress — that the release will pose no future threat to the United States and that the prisoner will be treated justly in the receiving country. Those releases have been complicated because, after Obama announced at the outset of his presidency that Guantánamo would close within a year, Congress banned any Gitmo detainee from ever being transferred to the United States for any purpose whatsoever, a ban that’s been re-authorized every year since then.
While those detainees cleared for release await transfer to other countries, developments over the past few months have put the military commissions in the forefront of activities aimed at closure.
Until now, the commissions have indeed been a dismal failure. A mere nine convictions have been secured since the passage of the first Military Commissions Act in 2006, all but two through plea deals, and four of the nine have been overturned on appeal. Two remain on appeal. Generally, however, the fact that all of the individuals currently charged and facing trial were initially held at CIA black sites around the world where they were grievously tortured has proven an impassable barrier to trial. Consequently, as New York Times reporters Carol Rosenberg and Charlie Savagehave reminded us, “No former C.I.A. detainee has been convicted at trial before a military commission.”
The reasons are many. Obama delayed the trials for three years and the pandemic delayed them further. But by far the biggest obstacle remains the fact that the detainees were horrifically tortured at those black sites. Defense attorneys have persistently insisted that evidence derived under torture should be inadmissible in the proceedings in accordance with the law. While the prosecutors have claimed otherwise, even so many years later, the tortured defendants continue to suffer from the devastating fashion in which they were treated, impeding their defense and causing further delay. In fact, their torture-induced severe psychological instability and often physical incapacity, not to mention instances of distrust of their lawyers, have made it difficult to hold hearings of any sort. As a result, after so many years, the cases remain in the throes of pre-trial hearings and jury selection is still far off.
President Biden has indeed set himself a lower bar than Obama, who issued an early executive order calling for the closure of the prison within a year only to encounter immediate blowback and failure. Still, Biden has made some modest headway in closing Gitmo. Since he took office, most of those who remained in “forever prisoner” limbo have at least been cleared for release. In addition, he’s appointed Tina Kaidanow, former State Department ambassador at large for counterterrorism, to oversee their transfers and has secured the release of 10 prisoners since he took office.
But the recent signs, however incremental, of further movement pertain not to the three remaining “forever prisoners” or to the 16 who have been cleared for release but to those being dealt with by the military commissions established by Congress.
The Military Commissions Cases
The military commissions still face the almost insurmountable hurdle that has haunted them from the start: the legacy of CIA torture. Nevertheless, there has been some recent modest progress, despite the irrevocable damage it caused both individual detainees and our system of justice.
The first signs of movement came in the initial days of the Biden presidency when the Pentagon referred charges against three men to the military commissions. The two Indonesians and one Malaysian captured in Thailand in 2003 had been accused in connection with bombings that targeted two nightclubs in Bali in 2002 and a Marriott Hotel in Jakarta in 2003, resulting in the deaths of more than 200 people, including Americans. A trial date has now been proposed for 2025. (This would, of course, be after Joe Biden’s first term in office.)
Then, there have been signs of progress on potential plea deals. In the summer of 2021, pretrial hearings in the case of Abd al-Hadi al-Iraqi, an Iraqi captured in 2006 and accused of being a senior member of al-Qaeda, began. The al-Iraqi case reached a resolution in June 2022, when he pleaded guilty to war-crime charges for acts committed in Afghanistan. The terms of his plea deal are still unknown. His sentencing is set for 2024.
In addition, starting in the spring of 2022, prosecutors reached out to defendants in the 9/11 case, who have been facing the death penalty, to begin potential plea-deal discussions in which a maximum life sentence would replace the threat of death. But the path towards resolution remains fraught. In September, perhaps in response to pressure from some of the 9/11 families intent on keeping the death penalty in place, President Biden reportedly refused to approve certain details of those proposed deals. As with so much else at Guantánamo, for every step forward, there seem to be two steps back. Still, negotiations are presumably continuing.
In another instance of inching forward, the commissions have recently addressed the case of Ramzi bin al-Shibh, one of the 9/11 defendants. He has displayed severe signs of mental instability, including delusions and hallucinations, owing to his brutal treatment in CIA custody. He’s convinced, for instance, that CIA agents are still pumping unnerving noises and vibrations into his cell, causing sleep deprivation. His inability to talk about much else has stymied the attempts of his lawyers to prepare him for future hearings. Last June 6th, in fact, a panel of psychiatrists and forensic experts declared him unfit to stand trial, given his post-traumatic stress syndrome and his psychotic delusions. Based on their report, Commissions Judge Matthew McCall agreed and, on September 21, 2023, severed him from the trial.
Excluding Tortured Evidence
While there are, in other words, signs of progress via plea deals and severance, the most promising development may be in the longest running military commission case of all, that of Abd al-Rahim al-Nashiri. He’s accused of masterminding the bombing of the USS Cole, a destroyer off the coast of Yemen, in 2000 killing 17 American servicemen.
Al-Nashiri, a Saudi, was held in CIA black sites from 2002 to 2006, while being tortured using techniques like waterboarding, stress positions, forced sodomy, and mock executions. He was finally indicted in 2011, but his case has faced innumerable pretrial hurdles since then, largely involving debates over evidence derived from torture and the possible inadmissibility of it at trial.
Lawyers considered that his case had taken a step forward when the government reversed its position on torture-derived evidence. A Biden Department of Justice brieffiled on January 31, 2022, said, “The government recognizes that torture is abhorrent and unlawful, and unequivocally adheres to humane treatment standards for all detainees… [T]he government will not seek admission, at any stage of the proceedings, of any of petitioner’s statements while he was in CIA custody.” That reversed a prior policy allowing such statements to be used in pretrial hearings, if not at trial itself.
Then, in August, the judge in the case made torture the grounds for taking yet another step forward. Like other detainees, al-Nashiri had been interviewed in later years by FBI “clean teams” of agents who attempted to solicit the same confessions without torture and were often successful. The prosecution wanted to use those confessions, but defense attorneys argued that the impact of torture didn’t dissipate with the clean teams, that the detainees feared their torturers were waiting in the wings to punish them if they gave different answers. They insisted that the defendant’s torture trauma and the perpetual fear of more of it remained an ongoing obstacle to statements of truth.
Al-Nashiri’s lawyers filed papers seeking to exclude his clean-team testimony. Judge Lanny Acosta then took a long-overdue step forward, ruling against the admission of such later confessions. He noted that the clean-team agents “acted professionally and in no way coerced the accused,” even offering “tea and pastries” and reassuring the defendant that he was no longer in CIA custody. Nonetheless, Acosta ruled the statements inadmissible in pre-trial proceedings as well as at trial, since prolonged torture had undoubtedly affected al-Nashiri’s later testimony.
In his 50-page opinion, the judge offered a detailed chronology of the kinds of torture Nashiri had suffered and noted as well the continued use of force against him during his time at Guantánamo, treatment and conditions that could indeed evoke memories of his period in CIA custody. As the judge wrote,
“[H]e was in no position to know whether Drs. Mitchell and/or Jessen [the architects of the CIA’s “Enhanced Interrogation” program] were watching…. prepared to intervene with more abusive treatment… He had no reason to doubt that he might, without notice, suddenly be shipped back to a dungeon like the ones he had experienced before… [or if someone] lurked nearby with a pistol, a drill, or a broomstick, ready to intervene in the event he chose to remain silent or to offer versions of events that differed from what he told his prior investigators.”
As the Judge concluded, “Even if the 2007 statements were not obtained by torture or cruel, inhuman, and degrading treatment, they were derived from it.” Michel Paradis, a senior attorney in the Department of Defense’s Office of the Chief Defense Counsel and counsel for Abd al-Rahim al-Nashiri, has summed up the situation aptly, telling me, “What the refusal to admit the so-called ‘clean team’ statement shows is what anyone who looks at it up close sees. There is nothing clean about torture and there is no way to sanitize it.”
The judge’s decision also marks a potential threshold for the remaining Gitmo cases. If evidence from torture is disallowed, including in pre-trial proceedings, that may lead to future plea deals and even some leniency. Either way, in the wake of Judge Acosta’s decision, the interminably slow Guantánamo cases might just begin to proceed more rapidly.
Add to all this the effect of the passage of time, given among other things the aging not just of Gitmo’s prisoners, but of those working to bring their cases to trial over all these years, many of whom have retired. Judge Acosta gave notice of his retirement from the Army as September ended, while Matthew McCall, the fourth judge to preside over the 9/11 case, has similarly indicated that he’ll be leaving next April, also before it comes to trial. Several of the attorneys for the detainees have retired as well, after so many years representing their clients.
The belated but increasingly accepted notion that torture renders trials impossible, now seemingly shared by the court as well as the defense teams, has become more than mere rhetoric. As Paradis commented to me, “No justice system worth the name permits even the whiff of evidence tainted by torture. We have revolted at the idea for more than a century in this country and even persuaded the world that it should do the same, such as when Ronald Reagan signed the Convention Against Torture.”
Ironically, the acknowledgement of this reality may finally bring these cases to their conclusion. But so many years later, despite being determined to grasp every ray of hope, I suspect that, when it comes to the closing of Guantánamo, the sorrowful record of the past may overshadow the dreams of a better tomorrow.
(Courtesy: TomDispatch, a web-based publication, founded and edited by Tom Engelhardt, aimed at providing “a regular antidote to the mainstream media”.)
