military commissions
22 Years, 4 Presidents, and Just 1 Conviction Later, Dozens Still Jailed at Guantánamo
"The Biden administration needs no new authority or ideas" to close the notorious torture prison, one rights group argues. "All it needs is the political will and a willingness to do the work."
Human rights defenders marked 22 years since the opening of the U.S. military prison at Guantánamo Bay, Cuba with renewed calls for President Joe Biden to fulfill his stated intention to close the notorious torture camp, where 30 men—16 of them cleared for release—remain behind bars.
Like most of the roughly 750 prisoners released from Guantánamo, the majority of remaining detainees have never been charged with any crime. Only one—Ali Hamza Ahmad Suliman al-Bahlul, a Yemeni national—has ever been convicted of terrorism-related charges under the highly controversial military commission regime established by the George W. Bush administration in the wake of the September 11, 2001 attacks on the United States.
"It is outrageous that 22 years after the U.S. government opened the Guantánamo detention camp to detain Muslim men beyond the reach of U.S. law, that this abuse of human rights continues today," Daphne Eviatar, director of the Security with Human Rights program at Amnesty International USA, said in a statement.
Four American presidents have failed to close Gitmo, whose detainees ranged in age from 13 to 74 and which is viewed globally as a symbol of the indefinite detention and torture that took place earlier during the ongoing U.S.-led War on Terror. Former President Barack Obama—under whom Biden served as vice president—issued executive orders immediately after taking office in 2009 that were meant to end torture and close Gitmo. However, Obama was blocked by Congress from proceeding with his plan to close the prison, frustrating his campaign promise. Obama was also accused of breaking the law by actively shielding Bush-era officials from facing justice for their roles in torture at Gitmo and other military prisons and CIA so-called "black sites."
Shortly after Biden took office, the White House signaled it wanted to close Guantánamo. However, despite releasing 10 detainees, the administration has taken few steps toward achieving that goal and has spent millions of dollars expanding the facility by building a courtroom where prisoners are meant to be tried in secret.
However, the military commissions—which former lead prosecutor Col. Morris Davis called "rigged from the start"—have been stymied by the torture endured by defendants at the hands of military and CIA operatives. Military judges have barred Guantánamo detainees or evidence in terrorism cases from the courtroom due to torture.
This has been a major impediment to bringing terrorism suspects to justice. For example, Col. Stuart Crouch, a Guantánamo prosecutor whose Marine Corps buddy was a pilot on one of the planes that crashed into the World Trade Center on 9/11, refused to prosecute Mohamedou Ould Slahi—who allegedly helped organize the plane's hijacking—because Ould Slahi was tortured.
In another example, seven out of eight members of a Guantánamo military jury convened to hear the case against alleged terrorist plotter Majid Khan in 2021 recommended total clemency after the defendant testified how he endured torture including rape, being hung from a ceiling beam, and being subjected to the interrupted drowning method known as waterboarding while he was held at a CIA "black site" in Afghanistan.
Davis and at least four other military prosecutors requested and were granted removal from the military commissions because they felt the proceedings were unfair and marred by torture.
Among the Guantánamo detainees cleared for release are "forever prisoner" Abu Zubaydah, who has been imprisoned at Gitmo for 21 years without charge and was the first known victim of waterboarding.
"More than half of those who remain are men the United States itself does not believe need to be detained," the Center for Constitutional Rights—which represents some Guantánamo detainees—said in a statement Thursday. "The fact that they continue to languish after two decades is a cruelty that could end tomorrow."
"The Biden administration needs no new authority or ideas," the group added. "All it needs is the political will and a willingness to do the work."
Biden is seeking reelection this year and the leading Republican candidate is former President Donald Trump, who signed an executive order to keep Guantánamo open while threatening to fill the camp with "some bad dudes," although he did not transfer anyone to the prison.
On Tuesday, scores of rights groups published an open letter urging Biden to permanently close Gitmo.
"Whether Guantánamo and its injustices continue or—as you promised—end, will be a defining part of your legacy and this pivotal year of your presidency may be the last chance at closing it," the letter states. "It is long past time for a meaningful reckoning with the full scope of damage caused by U.S. policies in response to 9/11 and through the so-called 'War on Terror.'"
"Closing Guantánamo, ending indefinite military detention of those held there, and never again using the military base for unlawful mass detention of any group of people are necessary steps towards those ends—and to combating dehumanizing and Islamophobic narratives," the signers added. "We urge you to act without delay, and in a just manner that considers the harm done to the men who have been imprisoned without charge or fair trials for over two decades."
Negotiated Resolutions the 'Only Way' Guantánamo Prison Will Ever Close
"The military-commission system has failed to bring anyone to justice for anything through contested proceedings," said an attorney for Majid Khan, a tortured former prisoner recently released to Belize.
On February 2, U.S. prisoner and former al-Qaeda courier Majid Khan was released from the Guantánamo Bay Detention Camp in Cuba after more than 16 years of imprisonment. "We are very pleased with Majid's release," says J. Wells Dixon, a senior staff attorney at the New York City-based Center for Constitutional Rights (CCR).
"Majid's transfer to Belize is the culmination of nearly 20 years of work by the CCR and the law firm Jenner & Block," Dixon tells The Progressive. "Our only regret is that he was not released sooner."
On October 7, 2001, in the wake of the 9/11 attacks, the United States, together with Great Britain, launched "Operation Enduring Freedom," the war in Afghanistan and the beginning of the "global war on terror." It was followed, in March 2003, by the U.S. invasion of Iraq ostensibly to end Saddam Hussein's dictatorship and to destroy his alleged weapons of mass destruction (WMD).
On January 11, 2002, the first 20 detainees were delivered from CIA black sites to the Guantánamo military prison, known as Camp X-Ray, on the island of Cuba. Over the following two decades, approximately 780 detainees would be held there. Today, 34 detainees remain imprisoned in the detention facility. Most troubling, this prison held more than 150 innocent men for years. The Guantánamo prison and associated military courts currently cost U.S. taxpayers about $540 million a year (with about $13.5 million being spent on each detainee).
Khan was born in Pakistan, where he lived as a child, and later grew up in a suburb of Baltimore, Maryland. After 9/11, he returned to Pakistan and became a courier for al-Qaeda. He was arrested in Karachi in March 2003 and spent about three years in CIA black sites. He was then taken to Guantánamo in September 2006, which is when CCR began to represent him. He was charged by a military commission in 2012, pleaded guilty, and agreed to cooperate with U.S. authorities.
"I have a story that I have waited almost two decades to tell, so I want to start by thanking you for taking the time to listen to my statement," Khan begins in his October 2021 personal statement before his sentencing by a Guantánamo military commission. Khan said, "I want you to know what I did, what happened to me, and what I hope for the future."
Khan's testimony was also included in a report by the U.S. Senate Select Committee on Intelligence. He was the first former prisoner of a CIA black site to openly describe the violent and cruel torture he suffered under what was infamously dubbed "enhanced interrogation." "The more I cooperated and told them, the more I was tortured," he said.
The committee's report was approved on December 13, 2012, but not declassified until 2014.
Kahn admitted to helping finance the 2003 bombing of a Marriott hotel in Jakarta, Indonesia, that killed eleven people. The Senate report notes that he was "an operative who could enter the United States easily and was tasked to research attacks against U.S. water reservoirs." And, according to Khalid Sheikh Mohammed, who is considered to be the principal architect of the 9/11 attacks, Khan was "to deliver $50,000 to individuals working for a suspected terrorist leader named Hambali, the leader of al-Qaida's Southeast Asian affiliate known as 'J-I.'... Khan confirmed that the money had been delivered to an operative named Zubair..."
According to Khan, the CIA black site had dungeon-like conditions in which he was kept naked with a hood on his head, his arms chained in ways that made sleep impossible. The report chronicles that at the "[b]eginning in March 2004, and continuing until his rendition to U.S. military custody at Guantanamo Bay in September 2006, Majid Khan engaged in a series of hunger strikes and attempts at self-mutilation that required significant attention from CIA detention site personnel."
Most alarming was how the CIA responded to these actions:
Majid Khan was then subjected to involuntary rectal feeding and rectal hydration, which included two bottles of Ensure. Later that same day, Majid Khan's "lunch tray," consisting of hummus, pasta with sauce, nuts, and raisins, was "pureed" and rectally infused. Additional sessions of rectal feeding and hydration followed. In addition to his hunger strikes, Majid Khan engaged in acts of self-harm that included attempting to cut his wrist on two occasions, an attempt to chew into his arm at the inner elbow, an attempt to cut a vein in the top of his foot, and an attempt to cut into his skin at the elbow joint using a filed toothbrush.
Majid also said during his sentencing that he was raped with a garden hose: "While I was hanging for these three days, I recall one instance where I saw a guard or interrogator's face," he said. "This man sexually assaulted me while I was hanging naked. He touched my private parts while we were alone. I told this man to stop and that I wanted to see a lawyer. He responded, ‘Are you kidding, a lawyer? You are in no man's land. No one even knows where you are.'"
"Belize's offer of humanitarian resettlement [for Khan] is a model for other countries to offer [resettlement to] the remaining men."
"Let me be very clear, enhanced interrogation techniques are torture. And torture is—and always has been in modern times—illegal," insists Majid's attorney, Dixon. "There is no exception under U.S. and international law for torture. And the torture that was inflicted on Majid was a war crime that should have been—and should in the future be—prosecuted as a criminal act."
Colonel Douglas K. Watkins, a judge at the Guantánamo military court, considered Khan's treatment "shocking." In his June 2020 ruling on Khan's case, he wrote, "there is no serious dispute that Mr. Khan was tortured and suffered other illegal pretrial punishment both in CIA detention and at Guantanamo."
Shortly after the 9/11 attacks, in November 2001, President George W. Bush issued an executive order establishing military commissions in Guantánamo. They had no legal obligation to grant basic U.S. Constitutional protections to prisoners because the prison was outside of the United States. In addition, they did have to adhere to the Geneva Conventions because these treaties did not apply to "unlawful enemy combatants."
In 2006 the U.S. Supreme Court found that the system of military commissions that was to be used to try selected prisoners held at Guantánamo was in violation of the Geneva Conventions and the Uniform Code of Military Justice.
Dixon points out that "when Majid Khan was brought to Guantánamo in September 2006, the assumption by the Bush Administration was that the U.S. military would go along with what the CIA had done, and would help to cover up what the CIA had done." He then adds, "But when push came to shove when Majid got in front of a military judge and a military jury, that military judge said this was torture—and the military jury condemned it."
"There are 34 men who remain, and the overwhelming majority of those men have been approved for transfer," Dixon adds. "Belize's offer of humanitarian resettlement [for Khan] is a model for other countries to offer [resettlement to] the remaining men."
Going further, he notes that "there [are] a small number of men who are still involved in the military commission system including the so-called 9/11 defendants—i.e., the five men who are accused of plotting the 9/11 attacks. So, what do we do about those men?"
"I'm not involved in those cases but having been through the military-commission system with Mr. Khan," Dixon argues. "I can say this, the military-commission system has failed to bring anyone to justice for anything through contested proceedings. The only success the military commission system has seen is through guilty pleas like that of Mr. Khan."
Dixon adds, "My point is that we will never have accountability for 9/11 if those cases continue toward trial because they will never get to trial, and if they get to trial, they will be overturned on appeal because of issue of the torture." He goes further, pointing out, "negotiated resolutions of the remaining military commission cases is the only way to obtain any modicum of justice and accountability. And it's the only way Guantánamo is going to close."
UN Human Rights Expert to Conduct First-Ever Visit to Guantánamo Bay Prison
"It's hard to exaggerate the importance of this visit more than two decades since Guantánamo was open to hold detainees beyond the reach of the law," said one ACLU official.
For the first time ever, a United Nations human rights and counterterrorism expert will visit the U.S. military prison at Guantánamo Bay, Cuba, a U.N. office announced Wednesday.
The United Nations Office of the High Commissioner for Human Rights (OHCHR) said Irish attorney and law professor Fionnuala Ní Aoláin—the U.N. special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism—will visit Guantánamo as part of a "technical visit to the United States" from February 6-14.
In addition to visiting the prison, OHCHR said Ní Aoláin will "carry out a series of interviews with individuals in the United States and abroad, on a voluntary basis," including victims and relatives of those killed in the 9/11 attacks and former Guantánamo detainees in countries where they have been repatriated or resettled.
Human rights advocates welcomed the development.
"We commend the Biden administration for agreeing to let a U.N. human rights expert visit Guantánamo, finally ending a shameful U.S. government moratorium that sought to establish a prison outside the reach of law," Hina Shamsi, director of the ACLU's National Security Project, said in a statement.
\u201cFirst-ever visit by a UN human rights expert to Guantanamo. It\u2019s hard to exaggerate the importance of this visit more than 2 decades since Guantanamo was open to hold detainees beyond the reach of the law. Let\u2019s hope it signals real movement towards ending this shameful atrocity.\u201d— Jamil Dakwar (@Jamil Dakwar) 1675275471
"International human rights norms and institutions are integral to preventing the torture, indefinite detention, and unfair trials that now symbolize Guantánamo globally," Shamsi added. "It should never have taken two decades, but we're encouraged to see the basic principle of U.N. rights officials' independent access to all sites of detention and detainees respected at long last by our country."
Since it was first opened in January 2002 by the George W. Bush administration in the early months of the so-called War on Terror, Guantánamo, or Gitmo in U.S. military parlance, has imprisoned 779 men and boys. Many of them were tortured, and only a handful were ever charged with any crime. According to retired U.S. Army Col. Lawrence Wilkerson—who served as chief of staff to Bush-era Secretary of State Colin Powell—Bush, along with Dick Cheney, his vice president, and Donald Rumsfeld, the secretary of defense, knew that most Gitmo prisoners were innocent, but kept them locked up for political reasons.
Although then-Presdident Barack Obama—under whom President Joe Biden served as vice president—signed executive orders meant to close Guantánamo and end torture, he was blocked by Congress from implementing the former policy, while torture continued at Gitmo during his tenure.
"International human rights norms and institutions are integral to preventing the torture, indefinite detention, and unfair trials that now symbolize Guantánamo globally."
Hundreds of Guantánamo detainees were released during the Bush and Obama administrations, with a relative handful freed under Biden. Today, 35 men remain locked up at Gitmo. According to the Pentagon, 20 of them are cleared for release while nine—including alleged 9/11 mastermind Khalid Sheikh Mohammed—have ongoing cases before military commissions from which numerous prosecutors have resigned amid allegations of rigging to secure convictions.
September 11th Families for Peaceful Tomorrows, an activist group, said in a statement that it "deeply appreciates the willingness of the special rapporteur's office and the Biden administration to work together to make her visit to Guantánamo possible."
"As 9/11 family members, we remain gravely concerned about the absence of justice within the military commission system," the group added. "We welcome the commitment of the special rapporteur to the human rights of victims of terrorism and we hope that her work can inform a path forward to judicial finality for family members, the accused, and all those affected by 9/11 and its aftermath."
Biden—whose former press secretary said closing Guantánamo is "our goal and our intention"—has been criticized for failing to do so two years into his administration and 21 years after the prison opened.