on the world: a view on human rights
By the time Barack Obama became president of the United States in 2009, two-thirds of the prisoners at Guantánamo Bay had already been released by George Bush. With 242 remaining, Obama promised to close the prison camp by January 2010. In January 2016, in his final year as president, there are still around 100 prisoners.
As early as 2007, then Illinois senator and Democrat presidential candidate Barack Obama declared that “As President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions.” The pledge to close Guantánamo was a central plank of his election campaign.
One of his very first actions upon becoming president, on 22 January 2009, was to sign an executive order to review the status of prisoners, impose a moratorium on military tribunals and to close Guantánamo “as soon as practicable, and no later than 1 year from the date of this order.” In January 2016, the planned release of 17 prisoners, the largest number in one month under the Obama administration, is hailed as progress. Most could have been released years ago.
Obama was quick to break his promises, and has never looked back. Time is not running out for the outgoing president: there is no real plan to close Guantánamo or end indefinite detention. By May 2009, Obama’s original plan to close Guantánamo was blocked by the Senate, yet it appears to share many of the same features of the latest plan Obama has been promising since July 2015.
In essence, Barack Obama stated as early as May 2009 that he simply plans to relocate war on terror hostages the US cannot repatriate or release to a third country, possibly to federal Supermax facilities. In December 2009, for the first time, the Obama administration suggested purchasing a prison in Illinois to house these prisoners. More recently, in 2015, Pentagon officials visited potential sites in South Carolina and Kansas.
In May 2009, Obama also announced the reinstatement of military commissions. Under a new Military Commissions Act later that year, the first person to be tried was former child prisoner, Canadian Omar Khadr, who was 15 at the time of his alleged offences. He is the only person to have been tried as an adult before a military tribunal for war crimes allegedly committed as a minor since World War II.
Having backtracked on promises that helped him come to power, there were 198 prisoners at Guantánamo on the day it was supposed to have closed in 2010. With general acceptance that Barack Obama was not going to close Guantánamo, the issue fell off the radar in 2010, until a mass hunger strike by prisoners in 2013 forced it back there.
By mid-February 2016, Guantánamo Bay will have been open longer under Obama than George Bush. Although still more closely associated with the latter, it is Obama who has missed countless opportunities to close the most expensive prison on Earth, costing $3.7 million per year per prisoner, and has delayed inexplicably in resolving the status of prisoners.
Less than two dozen of all the prisoners ever held at Guantánamo are likely to face trial. None will ever have a fair trial. The few ongoing cases are still at pre-trial stage. Even the five men alleged to have been involved in the 9/11 attacks in September 2001 are unlikely to face trial for several more years.
The military commission system is designed to fail. Most convictions have been overturned on appeal. Nonetheless, the Obama administration insists on upholding an expensive legal shambles that is beyond salvage. In December 2015, the Obama administration appealed the overturned conviction of Yemeni Ali Hamza Al-Bahlul, convicted in 2008, for the third time. His previous successful appeals have seen others win theirs, and could ultimately hammer the final nail into the coffin of military commissions.
The so-called ‘forever prisoners’, or those deemed too much of a risk to US security to release but who cannot be tried, have the most complicated status. In 2011, Barack Obama started a periodic review system for such prisoners to determine whether or not they can actually be released. The reviews were supposed to have been completed in 2012. There are currently 27 such prisoners. Since 2011, less than 20 have had their status reviewed. Almost all who have were cleared for release. The delay in reviewing prisoner status led Mauritanian prisoner Mohamedou Ould Slahi to seek an immediate review through the courts; his application was rejected. Ould Slahi, best-selling author of Guantánamo Diary, is not known to pose a threat but still awaits formal acknowledgement of that.
The largest group of prisoners, almost half the prisoner population, are those cleared for release. There have been delays even where prisoners have a safe home or third country to return to: British resident Shaker Aamer was cleared for release in 2007. In the same year, the British government demanded his return to the UK; that happened in October 2015.
Obama has often blamed Congress for the delays and his failure to close Guantánamo. A special report by Reuters in December 2015 blamed the delay on the Pentagon as well, stating that it had thwarted the release of long-term hunger striker Tariq Ba Odah, who currently weighs less than 37kg, to a third country that had agreed to take him. The report is less revelatory when looked at in a broader context. In late 2014, the State Department envoy negotiating prisoner transfers and the closure of Guantánamo, Clifford Sloan, resigned in frustration at the slow pace at which the Pentagon was working on releases. Ultimately, responsibility lies with Obama.
Obama’s greatest failing has probably been the continued captivity of a large number of Yemeni prisoners cleared for release years ago. Of the current 46 cleared prisoners, 37 are from Yemen. A 2010 moratorium on transfers to Yemen was lifted in May 2013. It was reinstated in practice in January 2015 and in the National Defense Authorization Act (NDAA) 2016 at the end of that year. The interim period was not used to send prisoners home.
If Barack Obama does close Guantánamo in the next twelve months, it will be without ending indefinite detention. Obama must be alone in believing that Guantánamo’s offence is its location and not 14 years of abuses of international law and human rights. Janet Reitman describes Guantánamo as “less of a place than a metaphor for all of the post-9/11 national-security policies that have made the so-called global War on Terror intractable.”
Obama has consistently upheld those policies and practices, perhaps best epitomised in his flippant admission that “we tortured some folks” in 2014. By consistently maintaining Bush-era rhetoric to justify Guantánamo’s existence, Barack Obama is stating that he believes the long-debunked founding myths of Guantánamo and supports the continuation of the extralegal regime it represents. With over one thousand people shot dead by US law enforcement agents each year, the alleged risk posed by Guantánamo prisoners to the US is clearly exaggerated, and with the naval base home to another indefinite detention facility since 1991, for immigration detainees, there is no interest in ending indefinite arbitrary detention, a highly lucrative business.
In the past few weeks, Barack Obama has reiterated his commitment to closing Guantánamo several times. Expect rhetoric and lots of editorials but little change. Closing Guantánamo is seen as a legacy issue for Barack Obama. Yet, while the media focuses on the impact his failure to close it will have on Obama’s place in history, there is no consideration of the long-term physical and psychological impact almost 15 years of indefinite detention and torture will have on the prisoners. They remain, as always, pawns in other people’s power games.