In the five years since the Guantanamo Bay prison camp was opened to house hundreds of detainees captured in Afghanistan and labeled “enemy combatants” by the US government, critics of US-led military adventures in Iraq and Afghanistan – including the overwhelming majority of Muslims worldwide – have been able to build a strong case against it. Yet, the facility has survived due to a combination of legal sleight-of-hand, a conflation of worldwide terror threats (both real and imagined) and raw stubbornness by the Bush administration. Guantanamo was sold as “essential” to American security.
A series of recent high profile disapprovals of the camp, including those from current Defense Secretary Robert Gates and former Secretary of State Colin Powell (who said last month that it should close “not tomorrow, but this afternoon”), echoed the increasing public dissatisfaction with the camp’s rationale along with the Iraq occupation in general. Potential Democratic front-runner Barack Obama has felt confident enough to demand its closure (as has John McCain among leading Republicans).
But it may have been the string of high profile legal setbacks, starting with a Supreme Court decision one year ago against the use of military tribunals and culminating earlier this month with another decision against “enemy combatant” status for US citizens and residents, that may have tipped the balance. Just as an Army officer last week also assailed the “generic” evidence in the tribunals that had taken place (some of the detainees had extended detentions due to owning a Casio watch), media reports of a high level meeting to discuss the camp’s imminent closure sparked denials by the White House (the meeting was later cancelled). However, there were acknowledgements that the search for an exit strategy (the little one, that is) was on.
Transferring detainees from the legal no-man’s land of Guantanamo, where US law and the Geneva Conventions are deemed inapplicable, to US prisons require access to US courts and habeas corpus, something that could exonerate scores of prisoners if evidence is lacking as previously described. The added refusal of many (Muslim) countries to accept detainees that are their nationals compounds the problem – or is a clever stick-in-the-eye, leaving the US stuck with people who are virtually stateless (though the Saudis are counseling their 53 detainees for repatriation). Despite its forced hand, military officials may be compelled to continue some form of detention of remaining detainees against everyone’s will.
As for the US citizens and residents freed from “enemy combatant” status by the Ali Al-Marri decision (3 in total), the case against Jose Padilla has demonstrated what would be in store if Guantanamo detainees were brought to US soil. Challenged by a pending Supreme Court case 2 years ago when Padilla’s “dirty bomb” charges were dropped, prosecutors have resorted to screening as evidence alleged code words in a (Patriot Act-enabled) wiretap and a 1997 video of Osama Bin Laden that Padilla may never have seen (and most news watchers did soon after). Hardly the stuff of conspiracies.
For now, of the approximately 375 remaining detainees, 80 are cleared for release with 60-80 to go on trial. The administration doesn’t want to release or put on trial the remaining 220 prisoners, whether Guantanamo closes or not. If continued detention succumbs to increasing poltical pressure, Amnesty International’s advice from last Friday will have to suffice: “It should either charge the detainees with recognizable criminal offenses and bring them to trial in the ordinary civilian courts, or it should release them with full protections against further abuses.”
In the meantime, the legal clarity doesn’t guarantee the absence of a long wait ahead before a trial or eventual freedom. While some detainees have succumbed to suicide in recent months, others have collected their thoughts in poetry. With only one terror conviction (a guilty plea by Australian David Hicks and a 9 month sentence) over five years among the hundreds held, there is certainly fodder for it. An anthology by current and former detainees goes on sale next month.
Zahed Amanullah is associate editor of altmuslim.com. He is based in London, England.