Guantánamo Closure Remains Elusive

The status of the controversial facility, along with its inhabitants, remains mired in delays, appeals and political dramas that make shutting the prison increasingly difficult to imagine.
Jennifer Fenton
July 3, 2015
http://www.oas.org/en/iachr/pdl/decisions/Guantanamo.asp

The newly appointed Special Envoy for Guantánamo Closure is “under no illusions” that closing the U.S. prison “is going to be easy.”

Lee Wolosky is filling a State Department position that has been vacant for the last six months. He served in the Bill Clinton and George W. Bush administrations — working on the National Security Council staff.

Wolosky understands the difficulty of the task ahead of him. The status of the controversial facility, along with its inhabitants, remains mired in delays, appeals and political dramas that make shutting the prison increasingly difficult to imagine.

In order to close Guantánamo Bay Detention Camp, Wolosky will have to speed up the review process by which prisoners held there can be cleared. Of the remaining 116 prisoners, 52 are cleared for transfer in some form. Most of those cleared are from conflict-torn Yemen, so Wolosky will now need to find a third country where they can be resettled.

Although the White House has blamed Congress for President Barack Obama’s failure to deliver on his repeated promises to close Guantánamo, U.S. law allows Obama to transfer prisoners pursuant to a court order. For the detainees who have been cleared, their transfer could be authorized by the Justice Department without any interference from Congress. But Obama hasn’t opted to do that.

“The president has the authority and the ability to transfer the prisoners and to close Guantánamo. He can do it if he really wants to. He has not,” said Tom Wilner, who was a counsel of record in Rasul v. Bush and Boumediene v. Bush, the two Supreme Court cases that established detainees' right to habeas corpus — the right of a prisoner to appear before a court to determine if he is lawfully held.

“The administration must determine that the transfer from Guantánamo is in the national interest, and that the receiving country will commit to take reasonable step to mitigate the risk that the detainee will do something bad in the future,” Wilner said. “Furthermore, a host of countries have offered to take Guantánamo detainees and to commit to mitigate any risks resulting for the transfers.”

One of the cleared Yemeni prisoners, Tariq Ba Odah, is on hunger strike and reportedly near death. Obama could "absolutely" order Odah's release, said lawyer Omar Farah about his client. “It’s critical in a case like this.” Odah, 36, has “physical deterioration typically seen in a late-stage cancer or AIDS patient,” said Dr. Jess Ghannam, a clinical professor at the University of California San Francisco School of Medicine, who submitted declarations on behalf of the prisoner.

A weight of 75 pounds for an adult male — who is 5 foot 3 inches tall — “is usually indicative that someone who is on the precipice of death due to severe malnutrition, organ failure and systemic collapse,” Ghannam stated.

Dr. Mohammed Rami Bailony, medical director of Enara Health Group, P.C., also provided testimony and added: “Any additional stress on the body … could quite simply overwhelm his systemic response causing death in a period of days.”

Odah is locked inside Camp 5 for at least 20 hours a day because his hunger strike is viewed as prisoner “non-compliance.”

Farah said Odah does not have “a death wish,” but has experienced a “great injustice” and is protesting peacefully in the only way available to him. “What is crazier, refusing to eat or him having been held for almost 14 years without charge?” he asked.

Odah was handed over by Pakistanis to the United States for a bounty and rendered to Guantánamo in February 2002. He has been held without charge since then. In 2007, he began his hunger strike. The Yemeni is painfully force-fed daily — contrary to international law norms — via nasogastric intubation, a procedure during which a thin, plastic tube is inserted through the nostril, down the esophagus and into the stomach.

In June, Farah asked a federal judge to order his client’s release, arguing in part that regulations allow for gravely ill prisoners to be repatriated.

“A granting of his writ would immediately facilitate his release” and “side-step” the complicated politics. “The government could fight this case, but should it?” Farah said.

It’s been two years since there was a prison-wide hunger strike to protest indefinite detention. More than 106 of the 166 prisoners then were said to have taken part. The U.S. military no longer provides figures and has referred to hunger-striking as "long term, non-religious fasting."

Odah has been cleared for transfer for years. Prisoners who have not been approved for release are supposed to be reviewed, yet that process has been painfully slow.

The Periodic Review Board (PRB) process was established by Executive Order 13567 and signed by Obama on March 7, 2011. All the prisoners not facing charges should have had their pleas heard within a year, but to date only a handful have been allowed to present their cases.

Among them, 10 prisoners have been approved for transfer. The most recent is Abdul Rahman Shalabi, who had been on a nine-year hunger strike. It was recommended that he be transferred to Saudi Arabia to participate in “the local counseling and care program.”

Four were not cleared, of whom two will have their cases reheard.

The failure to give prisoners a PRB hearing “highlights the Obama administration’s tendency to cherry-pick concepts from international law, reaping the benefits (the power to detain until the end of hostilities) while dispensing with the limitations where convenient (the requirement of continued review to determine future dangerousness)," Jonathan Hafetz, an associate professor of law at Seton Hall, wrote for Just Security.

A number of prisoners recently asked a federal court to grant their writs of habeas corpus.  

Some prisoners are arguing that the legal authority to hold them is no longer valid, now that the U.S. has declared an end to the war in Afghanistan. Since 2010, no habeas petitions have been granted. That year, "Guantanamo Diary" author Mohamedou Ould Slahi won his lawsuit, but the Obama administration successfully appealed his release.

It was the Obama administration that decided to press on with the military commissions — albeit reformed ones.

But those commissions have rarely run smoothly. Recently, the U.S. Court of Appeals for the District of Columbia Circuit reversed Ali al-Bahlul’s conspiracy conviction, because a trial for his crime could not be conducted by a military commission. That was a ruling that many experts believe could ultimately be the end of the commissions — with the exception of trials over the 9/11 attacks and the bombing of the USS Cole warship.

Yet those trials have also been repeatedly delayed. “The government caused the main delay in the case so far by recruiting a defense team member as an informant,” James Connell, a defense attorney for one of the 9/11 defendants, Ammar al-Baluchi, wrote via email, referring to the discovery of an FBI attempt to compel someone on the defense into providing information to them.

“This infiltration caused the cancellation of all hearings but one since April 2014. At the one hearing we had, defendants recognized an interpreter as a former CIA linguist, an issue the military commission has not yet resolved,” Connell added.

And it has recently surfaced that there are some 14,000 CIA photographs of former so called “black sites” that attorneys for the defendants have not seen, according to The Washington Post.

Additionally, for more than two years, Connell has been waiting for a military judge to decide if the prosecution must produce documents and information about where his client was held. “The Senate committee staff reviewed over six million pages of CIA documents about the torture program, but the defense has been able to review less than 300,” Connell wrote via email. The reports of the photographs are important, but “so are the other 6 million pages the prosecution is hiding.”

July 22, 2015