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GuantanAmerica – Why is Guantanamo still open?

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Innocent men are still held in Guantanamo ten years after first prisoners arrived

The Congress of the United States appropriates, and the President of the United States spends more than $400,000 per day, seven days a week, to imprison people whom the government itself has deemed innocent.   The US Court of Appeals has upheld the legality of this indefinite detention of the innocent, and the U.S. Supreme Court has refused to review it.

The chance of ending this absurdity is just about zero.

That’s not just because the $400,000-a-day facility is the Guantanamo prison camp, and it’s not just because the Congress would try to keep the President from closing the prison even if he wanted to, and it’s not just because the President signed into law the NDAA that pretty much requires him to keep Guantanamo open – it’s also because official U.S. policy pretty much still supports everything that was done and continues to be done at Guantanamo.

Presently the Guantanamo prison holds 166 men, of whom 86 have been cleared by U.S. authorities of any wrong doing.  The U.S. declared these men innocent anywhere from five to eight years ago, but continues to hold them.  Another 40 or so have so little evidence against them that the U.S. can’t charge them with anything.

There would be 87 cleared for release now, if Adnan Latif still counted.  Latif, a Yemeni citizen, was cleared for release several times, starting in 2004.  After 10 years, 7 months, and 25 days captivity, Latif died in Guantanamo on September 10, 2012.   He had endured serious neurological problems ever since he suffered traumatic head injuries in a car accident in 1994.  He was 36.  The Navy has said he committed suicide.  His death is under review by the Naval Criminal Investigative Service.   Latif is survived by his wife and children, and by his parents.  He was never charged with any offense.  He was kept in solitary confinement.

Instead of Jim Crow, We Have Muhammad Crow

“Yemenis are judged as guilty by nationality as the rationale for holding them,” British journalist AndyWorthington said in front of the White House recently, referring to the President’s policy of preventing any Yemeni from being re-patriated under any condition.  He minced few words:

“Even though two thirds of the cleared men in Guantanamo are Yemenis, none of them are allowed to go home because of this [policy]…  This is an absolutely disgusting situation…. 

“The difference between the United States and a brutal dictatorship is that when a brutal dictatorship puts someone in prison and throws away the key and says, ‘You’re not having a trial, you’re going to be held without charge or trial for the whole of your life, you’re going to be detained indefinitely’ – they just throw away the key.  

“What they don’t do is say, ‘Hey, we’ve got a review process, we cleared you for release, but hey, guess what, we’re not actually going to release you.’ 

“That makes the United States worse than the brutal dictatorships, who don’t pretend that there is any form of justice.”   

Institutionalizing a Worse-Than-Brutal-Dictatorship

On January 3, President Obama signed the National Defense Authorization Act (NDAA) for 2013 that, by statute, gives the U.S. government a right that some consider unconstitutional: to imprison U.S. citizens or anyone else, and to hold them indefinitely, on mere suspicion of even a remote possible connection to terrorist activity, as defined by the government.    As reported on DemocracyNOW the same day:

“President Obama has signed a renewal of the controversial National Defense Authorization Act, or NDAA. The law has drawn widespread criticism for last year’s provision allowing the United States to detain suspects anywhere in the world without charge or trial. A group of journalists, activists and scholars — including Chris Hedges and Noam Chomsky — have challenged the Obama administration over that statute in a case currently before a federal appeals court.” 

The government has appealed a federal court ruling in May 2012 that held that the relevant section of the2012 NDAA was unconstitutional.  The judge, a multi-millionaire and former partner at Cravath, Swaine & Moore (an elite global law firm based in Manhattan), was appointed to the bench by President Obama in 2011.  Her May 16 decision, ordering the government not to use the law, surprised Glenn Greenwald, who wrote:

“A federal district judge today, the newly-appointed Katherine Forrest of the Southern District of New York, issued an amazing ruling: one which preliminarily enjoins enforcement of the highly controversial indefinite provisions of the National Defense Authorization Act, enacted by Congress and signed into law by President Obama last December. This afternoon’s ruling came as part of a lawsuit brought by seven dissident plaintiffs — including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Birgitta Jonsdottir — alleging that the NDAA violates ‘both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution’.” 

The 2013 NDAA reaffirms the government’s assertion of its right to imprison anyone any time for as long as the government chooses.   The NDAA also prohibits the president from spending any money to move prisoners from Guantanamo, while appropriating about $644 billion for other military activities.  The president issued a signing statement expressing regret over some provisions but, unlike his 2012 election-year signing statement, he did not express any commitment to changing those provisions.

Rules for the Treatment of Prisoners Reviewed 

In December 2012 the United Nations Office on Drugs and Crime (UNODC)  convened a three day, multi-national meeting, at the request of the UN General Assembly, to consider revising international standards for the rights of prisoners.   The UNODC has largely followed U.S. drug policy at the expense of harm reduction strategies and human rights, even though other UN agencies promote them.

The UN Standard Minimum Rules for the Treatment of Prisoners (SMRs) were adopted in 1955 and have become the leading international standards for protecting prisoners’ human rights, although they lack the force of law.   As the preamble states,

“ The following rules are not intended to describe in detail a model system of penal institutions. They seek only, on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.” 

The meeting in Buenos Aires December 11-13 was the first formal review of the rules since they were adopted more than fifty years ago, during which time the evolution of human rights law has included the Convention Against Torture and the Convention on the Rights of Persons with Disabilities.

Among the government and rights organizations taking part in the review, the American Civil Liberties Union (ACLU) was among the most active in reporting the deliberations.  Partly that was because the ACLU was among those trying to limit the length of time prisoners were held in solitary, based on the assessment that solitary confinement is not only a basic torture method, but does permanent, serious damage to those held in solitary:  

“Since the promulgation of the SMRs in 1955, a substantial body of research has demonstrated the harmful, and sometimes devastating, effects of solitary confinement on physical and mental health.    These harmful effects are most starkly illustrated by the significantly higher rates of suicide among prisoners in solitary confinement than among those in the general prison population.  While some groups, such as juveniles and persons with mental illness, are particularly vulnerable, the harmful effects of this practice are not limited to these populations.”

The U.S. Fails to Lead on Human Rights Issues

The ACLU’s “Blog of Rights,” while suspect of the U.S. based on its initial lukewarm reaction, reported its approval of a U.S. initiative to establish “an obligation by prison medical staff to report any case of suspected torture, excessive force, or other abuse of a prisoner.”  But when it came to solitary confinement, the ACLU blog was  disappointed:  

“Unfortunately, the U.S. continues to defend the use of long-term solitary confinement.  Several governments and NGOs endorsed a 15- or 30-day limit on solitary confinement, as well as an absolute ban on solitary for vulnerable groups like juveniles, pregnant women, and persons with mental illness.  

“ The U.S. delegation rejected all of these proposals.  To be fair, the U.S. was not the only government resisting meaningful restrictions on solitary confinement, and the U.S. proposal did contain some positive elements, such as a provision that visiting shall not be restricted for prisoners in solitary absent security justifications.  

“But it’s notable that the Chinese government endorsed without hesitation a 15-day limit to the use of solitary confinement.” 

The ACLU’s disappointment grew as the meeting went on and the U.S. opposed allowing legal counsel for prisoners facing disciplinary charges, and opposed even mentioning free health care provided to prisoners in other systems, and then,

“Most significantly, as the meeting was drawing to a close, the U.S. suddenly insisted that the Draft Report be amended to state that none of the recommendations hammered out over the previous three days had actually been agreed to. Instead, the Draft Report now says only that “[t]he Expert Group identified for consideration the following issues and Rules for the revision of the Standard Minimum Rules” (emphasis added).  

“This unfortunate language would allow the U.S. (or any other government) to later take the position that it didn’t agree to anything in Buenos Aires, thus jeopardizing the progress made at that meeting.” 

ACLU suspicions were further raised when the U.S. suggested that the group be discontinues and replaced with a group of government representatives only, thus shutting rights organizations like the ACLU out of the prisoners’ rights process.  Drawing what solace it could from the result, the ACLU blog noted that at least there was unanimity that the Standard Minimum Rules should be revised, and that the revisions should not weaken the rules.

A Decade Later, U.S.  Still Fails at Human Rights

On January 11, 2002, the world got its first view of the new normal in American justice – twenty chained men in orange jumpsuits with black bags over their heads arriving at the newly designated prison in legal limbo at the U.S Naval Base on scenic Guantanamo Bay in Cuba.  The United States had declared that this U.S. Naval  Base was outside U.S. legal jurisdiction and that prisoners there could be held  indefinitely, with no right to counsel, no rights as a prisoner of war, no right to trial.

On January 11, 2013, Amnesty International organized a peaceful procession of about 200 demonstrators, about half of them leading in single file,  wearing orange jump suits and black hoods, walking silently past the U.S. Supreme Court and Congress, pausing briefly at the U.S. Court of Appeals, before stopping in front of the White House to bear witness, kneeling beneath a banner saying “INAUGURATE JUSTICE CLOSE GUANTANAMO.”   Similar protests took place in other cities.

The next day, January 12, about a hundred members of a coalition of Washington area peace groups gathered at the CIA in Langley, Virginia to protest against the CIA’s drone assassination program as well as its involvement in Guantanamo.   When the demonstrators blocked one of the entrances to the CIA, security ignored them and closed that entrance.

The Washington Post ignored both of these demonstrations, but manage to find space to cover the birthday of the world’s oldest gorilla, who lives in Ohio.   ABC News didn’t cover the protests on air, but with a nice sense of the absurd ABC online noted a Guantanamo protest in London (but not Washington).   There were few exceptions to the mainstream media blackout, but the Denver Post was one and Iranian PressTV was another.

In 2008, candidate Obama confidently promised to close Guantanamo (repeatedly calling it the terrorists’ top “recruitment tool”).   In 2009, President Obama ordered Guantanamo Bay shut within a year, and made the promise again in his Nobel Peace Prize acceptance speech.

“The USA’s claim that it is a champion of human rights cannot survive the Guantánamo detentions, the military commission trials, or the absence of accountability and remedy for past abuses by US personnel, including the crimes under international law of torture and enforced disappearance,” stated Rob Freer of Amnesty International.  And a recent poll found that 60 per cent of young Americans have no moral objection to torture.

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