Last week, the Obama administration finally admitted that it might not be possible to close Guantánamo by the President’s self-imposed deadline of January 22, 2010, when defense secretary Robert Gates told ABC News’ “This Week” that it was “going to be tough” to meet the deadline. The announcement followed what appeared to be strategic leaks by administration insiders, which were designed to blame White House Counsel Greg Craig for the government’s woes.
Why it has taken so long to clear 75 prisoners for release
It was Craig who had pushed for the deadline, but although the Washington Post, in a joint article with ProPublica, reported several critical comments from current officials, claiming that Craig’s drive to set a deadline flew in the face of conflicting advice—in particular, a claim by “a senior government lawyer” that “The entire civil service counseled him not to set a deadline”—others were more supportive. The Post closed its article with a comment from an administration official who was “more effusive,” and who stated, “Greg Craig is a hero. He took responsibility for this policy from the beginning, and he has guts and character. If we can’t get it done by the deadline, then at least we’ll have done as much as we can as smoothly as we could have.”
In addition, in his interview with ABC News, Secretary Gates also declared his support for the initiative:
When the president elect met with his new national security team in Chicago on December 7th … last year, this issue was discussed, about closing Guantánamo and executive orders to do that and so on. And the question was, should we set a deadline? Should we pin ourselves down? I actually was one of those who said we should because I know enough from being around this town that if you don’t put a deadline on something, you’ll never move the bureaucracy. But I also said and then if we find we can’t get it done by that time but we have a good plan, then you’re in a position to say it’s going to take us a little longer but we are moving in the direction of implementing the policy that the president set. And I think that’s the position that we’re in.
Moreover, the lion’s share of the blame for delays in the closure of Guantánamo actually lies with lawmakers and with other officials in the Obama administration. After the President issued executive orders on his second day in office, which included the Guantánamo deadline, the administration then dithered, failing to support Guantánamo’s most celebrated innocents, the Uighurs, whose release into the United States was ordered by District Court Judge Ricardo Urbina last October, by backing the Court of Appeals in its decision to overturn that ruling in February this year.
This cowardice then allowed paranoid and opportunistic right-wingers to seize the initiative, reviving the Bush administration’s deceitful claims that Guantánamo is “full of terrorists” (as particularly promoted by former Vice President Dick Cheney), and encouraging both Democrats and Republicans in the Senate and the House of Representatives to pass legislation preventing the transfer of prisoners to the United States and withholding funding for the prison’s closure.
In addition, the government’s decision to support the Court of Appeals in the Uighurs’ case was not the only example of the Justice Department’s distressing failure to confront the many injustices inherited from the Bush administration. Since Obama came to power, those charged with preparing the government’s opposition to other prisoners’ habeas corpus petitions—apparently functioning without adequate insight from above—have persistently failed to recognize the weaknesses in the government’s case against a large number of the prisoners, and have repeatedly humiliated themselves in court, challenging habeas corpus petitions that they have not only lost, but that have been accompanied by withering criticism from the judges involved (see the cases of Abdul Rahim al-Ginco and Fouad al-Rabiah for the most severe examples).
The only apparent explanation for this lack of oversight is that, rather than focusing on the supposed evidence—or lack of it—in the habeas cases, the administration has focused instead on its own alternative to the court reviews, an interagency Task Force that has been reviewing the cases independently.
Last week, amidst the general gloom, some good news emerged from the Task Force, when a military spokesman announced that the interagency review had, to date, cleared 78 of the remaining prisoners. Three were released on the eve of the announcement (a Yemeni, Alla Ali Bin Ali Ahmed, who was repatriated five months after a judge ordered his release, and two Uzbeks, Oybek Jabbarov and Shakhrukh Hamiduva, cleared by military review boards under the Bush administration, who were sent to Ireland), but the information released in connection with the remaining 75 prisoners provides a fascinating snapshot into the workings of the Task Force and some of the difficulties of dealing with the toxic legacy of the Bush administration, even though, in other ways, the announcement also confirms the existence of an unnerving paralysis on the part of the Obama administration when it comes to actually releasing prisoners, and also raises questions about what the Task Force has actually been doing for the last eight months.
The 31 prisoners who could be released today
Of the 75 prisoners cleared for release, 18 had their release ordered by the courts, after successful habeas petitions, and of the remaining 57, at least 21, and probably as many as 36, were, like the Uzbeks mentioned above, cleared for release between 2006 and 2008 by Bush-era military review boards. For the first time, the Obama administration identified prisoners cleared for release by their nationalities, and although no names were given—to protect those who cannot be repatriated because of fears that they would face torture on their return, for whom delicate negotiations are ongoing with third countries who might take them—it is readily apparent from the list that, in the cases of 31 of these prisoners—from Kuwait, Saudi Arabia and Yemen—the need for anonymity is unnecessary, as none of these men have any reason to fear being returned to their home countries.
More significantly, there is no reason for any of these men to be held at Guantánamo for one minute longer, and no reason why they should not be put on a plane and flown home today, but such is the taint of Guantánamo that the administration has found reasons to delay releasing these men, even though they have been cleared for release by a combination of Bush-era military review boards, the U.S. courts, and the Obama administration’s own interagency Task Force.
Of these 31 men, two—Khalid al-Mutairi and Fouad al-Rabiah—are Kuwaitis, who secured resounding victories in their habeas cases (especially Fouad al-Rabiah, whose extraordinarily story of torture and false confessions was mentioned above). Inexplicable delay forms part of their story too, as al-Mutairi was cleared two months ago and is still held, but I am optimistic that both men will soon be repatriated.
Three others are Saudis, and although their identities have not been revealed, and it is uncertain if they are the three remaining Saudis who were cleared for release during the Bush administration, there appears to be no good reason for their continued detention, as I explained in an article in March, when six cleared Saudis were held, and before three were released (see here and here).
Paranoia regarding the Yemenis
However, the biggest story by far, when it comes to prisoners cleared for release who are still held, concerns the Yemenis, who make up 26 of the 75 prisoners cleared for release (and around 95 of the 223 prisoners still held in Guantánamo). They include Yasim Basardah, who was cleared for release by a District Court judge in April, and Ayman Batarfi, a doctor whose release was approved by the Task Force that same month, essentially to head off a humiliating defeat in court. The others have not been identified, although it seems likely that they include some, if not all of the 12 Yemenis approved for release between 2006 and 2008 by Bush-era military review boards. And yet, despite the fact that some of these men have been cleared twice over the last three years, and despite the fact that, in April, the judge in Ayman Batarfi’s case, Judge Emmet G. Sullivan, criticized the government’s behavior in the strongest possible terms, these 26 men are still imprisoned in Guantánamo.
To understand quite how severely the courts regard the continued detention of men who have been cleared for release, it is worth recalling that, back in April, when Judge Sullivan accepted the government’s sudden decision to release Batarfi, he made a point of publicly stating that he hoped it was not “another ploy not to return Dr. Batarfi to his country of origin but to continue with his deprivation of his fair day in court,” and requested status reports every 14 days. He also stated:
I’m not going to continue to tolerate indefinite delay on the part of the United States government. I mean, this Guantánamo issue is a travesty. It ranks up there with the internment of Japanese-American citizens years ago. It’s a horror story in the American system of jurisprudence, and quite frankly, I’m not going to buy into an extended indefinite delay of this man’s stay at Guantánamo, or anyone else on my calendar.
That was six months ago, and I take it that, as a result, Judge Sullivan has now had to endure twelve status reports explaining why the government has not yet been able to free Dr. Batarfi (which must have pushed his patience to its limits). However, as an article in Sunday’s New York Times explained, the fear of releasing Yemenis is so deep-seated that the administration will resort to the most ludicrous claims to prevent their release.
The Times article discussed Alla Ali Bin Ali Ahmed, the man freed last weekend, five months after District Court Judge Gladys Kessler ordered his release, but although the author, Scott Shane, spelled out that Ali Ahmed, a teenager seized in a guest house in Pakistan, was cleared by Judge Kessler, who “ruled that his incarceration had never been justified and ordered the government to get to work ‘forthwith’ on his release,” and although he added that his lawyer, Brent N. Rushforth, stated that his client was known as “the sweet kid” to other prisoners in Guantánamo, this was not enough for the government, and it appears that Ali Ahmed may only have been released because Judge Kessler was on the verge of openly criticizing the government. As the Times described it, she “appeared to be losing patience with the delay in complying with her May 11 release order,” and this coincided with Ali Ahmed’s release.
For some time now, the government has been trying to persuade the Saudi government to extend its successful rehabilitation program—which processed over a hundred Saudi ex-prisoners in 2006 and 2007—to the Yemenis, because it fears that, even though cleared for release, they might still constitute a threat. Negotiations have proven to be thorny—in particular, it seems, because the Saudi model relies upon strong family support that would not be available for the Yemenis in Saudi Arabia — but when the administration’s fears are spelled out, as they were in the Times on Sunday, it is clear that they are, to put it bluntly, completely unreasonable. In Scott Shane’s words, Obama administration officials explained that, “Even if Mr. Ahmed was not dangerous in 2002 …Guantánamo itself might have radicalized him, exposing him to militants and embittering him against the United States.”
The officials have valid fears about political instability in Yemen, and the existence of terrorist groups, even though the Yemeni authorities have stated that none of the 16 Yemenis returned from Guantánamo “have joined terrorist groups,” but whatever their fears, they do not seem to have reflected that, if their rationale for not releasing any of the Yemenis from Guantánamo was extended to the U.S. prison system, it would mean that no prisoner would ever be released at the end of their sentence, because prison “might have radicalized” them, and also, of course, that it would lead to no prisoner ever being released from Guantánamo.
To me—and to many other readers, I hope—this is simply unacceptable, but it demonstrates yet again that only at Guantánamo can fear trump justice to such an alarming degree.