The attorney for Guantánamo Bay detainee Tariq Ba Odah was furious to learn from a Reuters investigation published Monday that the Pentagon has continued to obstruct efforts to get the long-time hunger striker resettled even though he was cleared for release nearly six years ago. In a statement, Omar Farah, Ba Odah’s attorney at the Center for Constitutional Rights, said:
Today’s revelations prove there is no line the Pentagon will not cross to frustrate the president’s efforts to close Guantánamo, even potentially blowing up resettlement negotiations at their most sensitive juncture. The only question is whether the White House is blind to or passively allowing the insubordination to continue. Either way, if this persists, Guantánamo will surely outlast Mr. Ba Odah, who still weighs just 74 pounds.
Fourteen years after the Pentagon established it, the military prison remains open, a stain on America’s reputation, a reminder of cruelty and injustice, and a recruiting tool for extremists.
Civil libertarians and lawyers for detainees were temporarily heartened when President Obama signed an executive order on his second day in office in 2009 that he would close the prison within a year. But nearly seven years later, thanks to maneuvering by both Republicans and Democrats in Congress, and some foot dragging by the administration itself, there are still 107 prisoners languishing there even though more than half have been cleared for release.
In November in the Philippines, Obama repeated his earlier vow to close the place, noting once again that it serves as a recruiting center for the Islamic extremists of ISIS/Daesh and others. In December, he rejected and returned for revisions a Pentagon plan to shut down the Guantánamo prison and build a new one in the United States. The cost to close it, the Pentagon estimated, would be $600 million, including a one-time $350 million construction cost. Running the prison at Guantánamo now costs about $400 million a year. One hundred prisoners. You do the math. By contrast, it costs the government about $75,000 a year to hold a prisoner at a high-security super-max prison.
The 45 square miles now housing the naval base and prison were pried from Cuba at gunpoint more than a century ago. The 1903 treaty that made the theft “legal” was abrogated three decades later, but a forced lease that can only be abandoned if both parties agree has been the arrangement between Washington and Havana ever since.
After the 9/11 attacks, the Bush administration looked upon Gitmo, as it was long ago nicknamed, as the perfect place to imprison suspected terrorists. As the administration’s lawyers saw it, here was a place not controlled by Cuba yet not legally part of the United States, which offered what the Bush team viewed as a jurisdictionless locale where prisoners would have no access to legal counsel and not be covered by U.S. domestic law or international law, including the Geneva Conventions. The only differences between Guantánamo and the string of secret torture prisons the Central Intelligence Agency set up abroad is that the world was informed about Guantánamo.
Nine years ago, the Supreme Court pushed back against the lawlessness of the Bush administration’s operations at Guantánamo. Subsequent decisions by lower courts have ruled, among other things, that U.S. authorities cannot deny detainees access to legal counsel. But none of that has provided justice for the prisoners still held, even though dozens have been cleared for release, at least one is not the person his jailers thought he was when he was taken into custody, and the chances are slight that most of those not already cleared will ever see the inside of a courtroom.
The Reuters investigation by Charles Levinson and David Rohde found that Pentagon officials have worked diligently to block or at least delay the release of the remaining prisoners. The case of Ba Odah, a Yemeni, illustrates the problem.
Captured in 2002, Ba Odah was cleared for release in 2009. But, like other Yemenis held at the prison, his citizenship has kept him incarcerated. He has now spent more than a third of his life at Guantánamo, and he has been on a hunger strike half that time.
In September, a foreign delegation had agreed to take Ba Odah to their country. But, first, they wanted to see his medical records:
The foreign officials told the administration they would first need to review Ba Odah's medical records, according to U.S. officials with knowledge of the episode. The Yemeni has been on a hunger strike for seven years, dropping to 74 pounds from 148, and the foreign officials wanted to make sure they could care for him.
For the next six weeks, Pentagon officials declined to release the records, citing patient privacy concerns, according to the U.S. officials. The delegation, from a country administration officials declined to identify, canceled its visit. After the administration promised to deliver the records, the delegation traveled to Guantanamo and appeared set to take the prisoner off U.S. hands, the officials said. The Pentagon again withheld Ba Odah's full medical file. [...]
Negotiating prisoner releases with the Pentagon was like "punching a pillow," said James Dobbins, the State Department special representative to Afghanistan and Pakistan from 2013 to 2014. Defense Department officials "would come to a meeting, they would not make a counter-argument," he said. "And then nothing would happen."
A key hold-up in the past was Defense Secretary Chuck Hagel. In fact, one reason Obama forced Hagel out was his stance on Guantánamo. Since then, the Pentagon has moved a tad more briskly. Expectations are that 17 low-risk detainees will be transferred in January:
“There are signs of progress, but at the current pace the administration will not get through all the detainees and give them a proper chance of transfer by the time Obama steps down,” said Pardiss Kebriaei, a senior attorney with the Center for Constitutional Rights (CCR).
Of the 107 detainees still held at the prison, 86 of them could be freed or transferred to other countries, following appropriate review, with minimal risk of interference by Congress other than a requirement to give the legislature 30 days’ notice of any transfer. In other words, the vast majority of detainees could be cleared out of Guantánamo by the
Obama administration acting under its own powers, irrespective of congressional foot-dragging.
Of those 94, 48 have already been cleared for release. In November, the Senate pushed through the National Defense Authorization Act (NDAA), which imposes tighter restrictions on Guantánamo transfers particularly to the US mainland. But the pending toughening of the rules merely angers lawyers acting for the detainees even more – why, they ask, did the Obama administration not act more quickly to effect transfers before the squeeze was imposed.
The CCR lawyers also wonder why there is a hold-up in the hearings on prisoners that in 2011 were ordered by the president to be handled by newly established Periodic Review Boards. Since then, only 18 prisoners have been granted hearings.
Some critics have argued that if the president had been really serious about closing the prison, he would have followed through on his threat to veto the National Defense Authorization Act over congressional threats to impose the tighter restrictions on transfers. But Obama chose not to take that action, no doubt in part because such a strong move would surely be used to try to hurt Democratic candidates in a presidential election year.
In 2013 Obama gave a speech in which he said that “history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it.” Quite true. Not only should the Guantánamo Bay prison be closed, but nothing like it should be rebuilt on U.S. soil. The president has a year to find a way to accomplish that in the face of heavy opposition and fulfill his pledge.