Mind you, I’ve been covering Guantánamo since President George W. Bush and his team, having responded to the 9/11 attacks by launching their disastrous “Global War on Terror,” set up that offshore prison to house people American forces had captured. Previewing Diaz’s movie, I was surprised at how it unnerved me. After so many years of exposure to the grim realities of that prison, somehow his film touched me anew. There were moments that made me sob, moments when I turned down the sound so as not to hear more anguished cries of pain from detainees being tortured, and moments that made me curious about the identities of the people in the film. Although the names of certain officials are mentioned, the central characters are the detainees and individual interrogators, as well as defense attorneys and guards, all of whom interacted at Guantánamo’s prison camp over the course of its two-plus decades of existence.

While viewing it, I was reminded of a question that Tom Engelhardt, founder and editor of TomDispatch, has frequently asked me: “What is it about Guantánamo that’s so captivated you over the years?” Why is it, he wanted to know, that year after year, as its story of injustice unfolded in a never-ending cycle of trials that failed to start, prisoners cleared for release but still held in captivity, and successive administrations whose officials simply shrugged in defeat when it came to closing the nightmarish institution, it continues to haunt me so? “Would you be willing,” he asked, “to reflect on that for TomDispatch?” As it turned out, the death of my dad somehow helped me grasp a way to answer that question with previously unattainable clarity.

The Missing Outrage

As a start, in response to his question, let me say that, despite my own continued immersion in news about the prison camp, I’m struck that, in the American mainstream, there hasn’t been more headline-making outrage over the never-ending reality of what came to be known as Gitmo. From the moment it began in January 2002 and a photo appeared of shackled men bent over in the dirt beside the open-air cages that would hold them, wearing distinctive orange jumpsuits, its horrid destiny should have been apparent. The Pentagon Public Affairs Office published that immediately iconic image with the hope, according to spokesperson Torie Clarke, that it would “allay some of our critics” (who were already accusing the U.S. of operating outside of the Geneva Conventions).

Rather than allay them, it caught the path of cruelty and lawlessness on which the United States would continue for so many endless years. In April 2004, the world would see images of prisoners in American custody at Abu Ghraib prison in Iraq, naked, hooded, cuffed, sexually humiliated, and abused. Later reports would reveal the existence of what came to be known as “black sites,” operated by the CIA, in countries around the world, where detainees were tortured using what officials of the Bush administration called “enhanced interrogation techniques.”

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For 22 years now, through four different administrations, that prison camp in Cuba, distinctly offshore of any conception of American justice, has held individuals captured in the war on terror in a way that defies any imaginable principles of due process, human rights, or the rule of law. Of the nearly 780 prisoners kept there, only 18 were ever actually charged with a crime and of the eight military court convictions, four were overturned while two remain on appeal.

A large number of those captured were originally sold to the Americans for bounty or simply picked up randomly in places in countries like Afghanistan known to be inhabited by terrorists and so assumed, with little or no hard evidence, to be terrorists themselves. They were then, of course, denied access to lawyers. And as I was reminded recently on a trip to England where I met with a couple of released detainees, those who survived Gitmo still suffer, physically and psychologically, from their treatment at American hands. Nor have they found justice or any remedy for the lasting harms caused by their captivity. And while the post-9/11 war on terror moment has largely faded into the past (though the American military is still fighting it in distant lands), that prison camp has yet to be shut down. 

A Generation Comes of Age

A second and more timely answer right now to Tom Engelhardt’s question is that my unwavering revulsion to the existence of Guantánamo has stemmed from a worldview that distinctly marked my father and many in his generation — men and women who came of age in the 1940s and early 1950s, whose first moments of adulthood coincided with the postwar emergence of the United States as a global superpower that touted itself as a guardian of civil rights, human rights, and justice. The opposition to fascism in World War II, the support for international covenants protecting civilians, a growing commitment at home to civil liberties and civil rights – those were their ideological guideposts. And despite the contradictions, the hypocrisy, and the failure that lurked just behind the foundational tenets of that belief system, many like my father continued to have faith in the honorable destiny of the United States whose institutions were robust and its motives honorable.

To be sure, there was deep denial involved in his generation’s sugar-coated version of the American experience. The revelation of the Phoenix Program in Vietnam; decisions to overthrow elected governments in Guatemala, Iran, and elsewhere; the profound and systemic domestic racism of the country as described in Michelle Alexander’s The New Jim Crow; even the dirty dealings of the Nixon White House during Watergate; and, in this century, the official lying that set the stage for the disastrous Iraq War all should have dampened their rose-colored assessment of American democracy. Still, in so many ways he and many of his compatriots held fast to their belief in the power of this country to eternally return to its best self.

True to his belief in the American dream, my father took me to see movies and plays at our local college that amplified a worldview that he, like so many of his generation, embodied. I was often the youngest attendee at those films with stars like Spencer Tracy in Inherit the Wind, an ode to free speech; Gregory Peck in To Kill a Mockingbird, with its portrayal of the evils of racism; and Henry Fonda in Twelve Angry Men, whose message doubled down on the tenet that the accused are always innocent until proven guilty. And let’s not forget Judgement at Nuremberg, the dramatization of the post-World War Two war crimes tribunals, led by U.S. Supreme Court Justice Robert Jackson, a series of trials in which Nazi leaders were convicted of committing genocide.

Those films, crying out for fairness, equality, and an end to racism, gave voice to champions of democracy, and energy to my father’s generation’s firm embrace of American possibilities.

Memory and Forgetting

A third answer, also underscored by my recent personal encounter with life’s fleetingness, is my growing fear, as an historian, that Guantánamo will simply be forgotten. In a sense, in the world of Donald Trump, collapsing bridges, and blazing wars in distant lands, it already seems largely forgotten. Although 22 years later it’s still home to 30 detainees from the war on terror, Guantánamo attracts little attention these days. If it weren’t for the invaluable work of Carol Rosenberg at the New York Times, who has reported on Gitmo since Day One in January 2002, as well as a handful of other dedicated reporters including John Ryan at Lawdragon, few could know anything about what’s going on there now. As sociology professor Lisa Hajjar points out, “Media coverage at Guantánamo has become a rarity.” While the press pool for the hearings of the military commissions that are still ongoing there averaged about 30 reporters until perhaps 2013, it’s now been whittled down to, at most, “about four per trip,” according to Hajjar.

Gitmo media coverage (and so public attention) has essentially disappeared — hardly a surprise given the current globally crushing issues of war and deprivation, injustice and extralegal policies, not to speak of the mad discomfort of election 2024 here in America. Guantánamo, whose last inmate arrived in 2008 and whose viable path to closure has remained blocked year after year (no matter that three presidents — George W. Bush, Barack Obama, and Joe Biden — each declared his desire to shut it down), persists, its deviations from the law unresolved.

As it happens, flagging interest in Guantánamo has coincided with an eerie larger cultural phenomenon — a turn away from history and memory.

In the world of social media and the immediate moment, a malady of forgetfulness about past events should be a cause of concern. In fact, Mother Jones Washington bureau chief David Corn recently published a striking piece on the phenomena. Citing an Atlantic article by psychiatrists George Makari and Richard Friedman, Corn noted that, while forgetting can help people get on with their lives after a traumatic experience, it can also prevent trauma survivors from learning the lessons of the past. Rather than confront the impact of what’s occurred, it’s become all too common to simply brush it all under the rug, which, of course, has its own grim consequences. “As clinical psychiatrists,” they write, “we see the effects of such emotional turmoil every day, and we know that when it’s not properly processed, it can result in a general sense of unhappiness and anger — exactly the negative emotional state that might lead a nation to misperceive its fortunes.”  In other words, events like the 9/11 attacks and what followed from them, the Covid pandemic, or even the events of January 6, 2021, as Corn’s psychiatrists point out, can bring such pain that forgetting becomes “useful,” even at times seemingly “healthful.”

Not surprisingly, an increasing forgetfulness about traumatic events is echoed on an even broader scale in a contemporary trend toward the abandonment of history, presumably in favor of the present and its megaphone, the social media universe. As historian Daniel Bessner has pointed out, this country is now undergoing a profound reconsideration of the very purpose and importance of the historical record. Across the country, universities are reducing the size of their history faculties, while the number of undergraduates majoring in history and related fields in 2018-2019 had already declined by more than a third since 2012.  

No wonder Guantánamo has been relegated to the past, a distant chapter in the ever-diminishing war on terror and no matter that it continues to function in the present moment. For example, two death penalty cases are currently in pretrial hearings there. One involves the October 2000 bombing of the USS Cole, a Navy destroyer, which resulted in the deaths of 17 American sailors. As the intrepid Carol Rosenberg points out, the case has been in pretrial hearings since 2011. The other involves four defendants accused of conspiring in the attacks of September 11th. A fifth defendant, Ramzi bin al Shibh, was recently removed from the case, having been found incompetent to stand trial due to the post-traumatic stress disorder that resulted from his torture at American hands. As for the remaining defendants, originally charged in 2008 and then again in 2011, no trial date has yet been set. The ever-elusive timetable for those prosecutions tells you everything. Evidence tainted by torture has made such a trial impossible.

The Cycles of American History

It’s hard to fathom how my father’s generation, stubbornly rose-colored in their vision of the country, swallowed the blatant failures of the post-9/11 years. My sense is that many of them, like my dad, just shook their heads, certain that the true spirit of American democracy would ultimately prevail and the wrongs of indefinite detention, torture, and judicial incapacity would be righted. Still, as the country spiraled into January 6th and its aftermath, the reality of America’s lost grip on its own promises of justice, morality, lawfulness, and accountability actually began to sink in. At least it did with my dad, who expressed clear and present fears of a country succumbing to the specter of his childhood, fascism, the very antithesis of the America he aspired to.

Philippe Diaz’s film about Gitmo (which I encourage readers to catch when it premieres at the end of April) should remind at least a few of us of the importance of living up to the image of the country my father and others in his generation embraced. Isn’t it finally time to highlight the grave mistake of Guantánamo? Isn’t it finally time to close that shameful prison, distinctly offshore of American justice, and reckon with its wrongs, rather than letting it disappear into the haze of forgotten history, its momentous violations unresolved. 

In 2005, in his confirmation hearings for attorney general, George W. Bush’s longtime legal counsel Alberto Gonzales maintained that the ideals and laws codified in the Geneva Conventions were “quaint and obsolete.” That phrase, consigning notions of justice and accountability to the dustbin of history, encapsulated this country’s post-9/11 strategy of evading the law in the name of “security.” And as long as Guantánamo remains open, that strategy remains in place.

Wouldn’t it be nice if, rather than letting Gonzalez etch in stone an epitaph for the ideals my father and his generation so revered, we could find hope in a future where their trust in the rule of law and in a government of responsible citizens who put country above personal fortune, law above fear, and peace above war might prevail? As we lay my dad’s generation to rest, shouldn’t we take some consolation in the possibility that their spirit may still help us find our way out of today’s distinctly disturbing and unnerving times?

Copyright 2024 Karen J. Greenberg

Via Tomdispatch.com

Sadly enough, justice delayed (and possibly denied) is once again front and center in America as we face the specter of Donald Trump and his insistence on eternally evading the reach of the law. What’s at stake isn’t just the fate of the former president, but an essential aspect of democracy.

The Georgia Case

Recently, the country was privy to attempts by Donald Trump’s lawyers to delay, if not completely derail, legal proceedings in a Georgia courtroom where Trump faces 13 felony counts for, in essence, trying to steal an election. In a hearing linked to that Georgia election interference case, originally scheduled to begin in August, a team of Trump defense attorneys attempted to remove prosecuting District Attorney Fani Willis from the case. The defense team has argued that Willis was not only having an affair with a man she had appointed as lead prosecutor in that case but had gained financially from doing so.

Should the judge indeed order her removed, the trial could be delayed until well past the November presidential election and might never take place at all. A new prosecutor could decide not to bring charges against Trump and his 14 co-defendants, and even finding one could prove painfully difficult, given the size, complexity, and cost of the case. According to NBC News politics reporter Dareh Gregorian, it would be a “massive undertaking.” Not to mention that selecting a new prosecutor could spark all sorts of internal politics in the Georgia justice system. The “delay,” in other words, could well amount to an utter defeat. Originally scheduled to be decided before the 2024 presidential election, the trial would, at best, be postponed into the distant future and might never take place.

And that’s not the only case in which Trump’s team is deploying a strategy of delay in the service of strangling future legal proceedings.

The Jack Smith Federal Cases

Special Counsel Jack Smith — appointed by Attorney General Merrick Garland in November 2022 after more than a year of persistent calls for an investigation into the January 6th insurrection — has mounted two federal criminal cases against Trump. One involves classified documents he took back to his Mar-a-Lago estate and refused to return. It’s now before a Florida federal court (and a Trump-appointed judge). The other is the January 6th election interference case taking place in Washington, D.C. Both have repeatedly succumbed to “assorted motions and maneuvers” of delay, as Mother Jones columnist David Corn aptly puts it.

In truth, delay has been front and center in each case. Only recently, Trump’s lawyers petitioned the Supreme Court to put Smith’s potentially devastating election interference case on hold while the former president appealed a lower court ruling that he doesn’t have presidential immunity from federal prosecution. He has now filed an appeal with the Supreme Court, asking the justices to determine whether or not he indeed does have immunity. This comes after the D.C. appellate court took over a month to issue its decision, just one more way in which timeliness has been left in the lurch at a moment when time should be of the essence.

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In a second delaying maneuver in that case, the former president’s lawyers have asked the Supreme Court to pause proceedings until the trial of another January 6th defendant — subject to similar charges — concludes. Originally scheduled to begin on March 4th, the case has already been successfully stalled, though it could still, at least theoretically, begin in July, overlapping with the Republican National Convention or even during the fall election period itself.

In a similar fashion, Trump’s legal team has sought to push off Smith’s second case, the one involving those boxes of classified documents, some of which Trump so tellingly piled up in his Mar-a-Lago bathroom and shower. That case involves a 37-count indictment, including charges of willfully retaining national security documents, withholding and mishandling classified documents, and the purposeful obstruction of justice. Repeatedly, Trump’s lawyers have asked for delays in the case, including a request that Judge Aileen Cannon postpone the trial until after the November election. That Trump-appointed judge has indeed agreed to some delays but so far has kept the trial’s starting date at May 20th. In frustration at the slow pace of that case, Smith has called the Trump team’s persistent attempts at delay “relentless and misleading.” According to New York Times reporters Alan Feuer and Maggie Haberman, the trial date “will almost certainly be delayed” — the only question is how long the delay will be.

The New York State Case

As in the Georgia case, the fourth criminal indictment against the former president is taking place in state court. Manhattan District Attorney Alvin Bragg has indicted him in what’s commonly known as “the hush-money case.” What’s at stake, however, is not only the silencing of porn star Stormy Daniels with whom Trump had an affair just before the 2016 election. The indictment accuses him of “falsifying New York business records in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election.” As Bragg explained to WNYC’s Brian Lehrer, “The core is not money for sex. We would say it’s about conspiring to corrupt a presidential election and then lying in New York business records to cover it up. That’s the heart of the case as we’ve laid out in court filings.”

Here, too, Trump sought a delay, alleging that showing up in court for the trial, as required by law, would interfere with his campaign for president. His appeals were, however, denied by the judge overseeing the case, which may indeed mean that it will be the first criminal case against him to actually take place. It’s now scheduled for March 25th in Manhattan.

Undermining Democracy

Delay matters when it comes to the 2024 election. As has become ever clearer, potential peril of a remarkable sort may lie ahead for our democracy, given Trump’s warnings about his plans, if reelected, to dismantle the civil service, pull out of NATO, deploy federal troops domestically, and gut the Department of Justice, as well, undoubtedly, as trying to pardon himself in the federal cases against him. And that’s just to begin down a list of the possible dangers.

But part of what’s now at stake, even without such an election outcome, is the viability and legitimacy of the judicial system itself. While the question of whether a president is above the law hovers over political discourse these days, there should be another major concern here — namely, the perception that our courts may not be up to the tasks assigned to them. Nowhere has this test been more strained than when it comes to the issue of timely justice, the right, that is, to a fair and speedy trial.

The notion of a timely trial, after all, has been part of the fabric of American justice since the founding of the legal system. The Sixth Amendment very specifically calls for the ensuring of “a speedy and public trial.” Later statutes passed by Congress — notably the 1974 Speedy Trial Act — offered additional support for the idea that justice must be dealt out in a timely fashion. Under that act, the disposition of a case is supposed to occur within 70 days, although numerous exceptions are allowed for extending that timeframe in the name of fair and just proceedings, among them the many pre-trial motions we’re now seeing in the Trump cases.

Guantánamo

It’s worth noting that the potential failure of the courts to operate in a timely fashion is anything but new to this Trump-era moment. Notably, in the major national security case of the twenty-first century, the courts failed dismally. Imagine this: more than 22 years after the nightmarish 9/11 attacks, this country has been unable to try the individuals, long in custody, who are accused of being co-conspirators in those attacks that killed thousands of Americans and took down the Twin Towers in New York, while devastating the Pentagon in Washington.

The 9/11 case has, in fact, been in a pretrial phase for nearly two decades now. In 2008, prosecutors for the military commissions set up at Guantánamo, Cuba, produced an initial indictment in the case. In 2009, Eric Holder, President Barack Obama’s attorney general, moved to transfer the case from the military commissions to federal court in Manhattan, a place where numerous international terrorism cases had been tried from the 1990s on. At the time, Holder’s Department of Justice issued a federal sealed indictment against the five 9/11 defendants.

Holder’s explanation spoke directly to the connection between timeliness and justice. He already rued the five years that had passed since those men were brought to Guantánamo. “I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The victims’ loved ones deserve the opportunity to see the alleged plotters of those attacks held accountable in court, an opportunity that has been too long delayed.”

Before the federal courts even had a chance to take up the case, however, public reaction ensured further obstacles to a federal trial. New York officials, family members of the victims, and congressional representatives insisted that security concerns made Holder’s proposal too dangerous. The pushback took the form of fears of violence on the streets of New York, along with anger that American rights and laws would be extended to terrorists. New York Mayor Mike Bloomberg and eventually Senator Chuck Schumer withdrew their support for Holder’s plan.

Sent back to Guantanamo in 2011, the 9/11 trial still has no set date. And because the defendants were tortured while in CIA custody — subjected to sleep deprivation, long periods of solitary confinement, waterboarding, and beatings — defense attorneys have persistently argued that the confessions of any of the defendants or tortured witnesses are invalid. In 2024, it’s hard to imagine the actual trial ever starting, though pre-trial hearings go on year after year after year.

Prior to the pandemic, jury selection for the trial was scheduled to begin in January 2021. Three years later, no trial date has yet been set and it may never be. Currently, the judge in the case has been asked to rule on an argument by one of the 9/11 case defense attorneys that, due to “outrageous government conduct” — that is, the torture of his client at a CIA “black site” — the case should be dismissed.

To make matters worse, after so many years, judges, prosecutors, and defense attorneys attached to the trial continue to resign or retire, including the presiding judge and, last month, one of the longest-serving prosecutors, both in the wake of the resignations of others in recent years, including a lead defense attorney and the chief prosecutor in the case.

What’s at Stake

While the military commissions, the federal courts, and the state courts each have different expectations of speed, they do share the mandate of upholding a fundamental element of democracy. In adjudicating guilt and punishment according to the laws of the land, they promise victims the right to a resolution and remedy and defendants the right to a fair trial. In a larger sense, they promise society security and safety, premised on the expectation that those who have broken the law will be punished in a timely fashion and serve as a deterrent to others who might seek to do the same.

In an address to the American Bar Association in August 1970, then-Supreme Court Chief Justice Warren Burger waxed eloquent about the foreseeable and devastating fallout that would follow a loss of trust in the courts. In his words, “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people.”

According to the former chief justice, delay was one of three things that “could destroy that confidence and do incalculable damage to society.” He concluded that “the delays in trials are often one of the gravest threats to individual rights. Both the accused and the public are entitled to a prompt trial.”

Unfortunately, so many years later, Donald Trump and his lawyers seem hard at work proving that the institutionalization of delay and the damage to the legitimacy of the court system that goes with it wasn’t restricted to those 9/11 cases. Quite the opposite, we now find ourselves in an era when the institutions designed to keep the United States a functioning democracy, including those courts, are at risk.

The 118th Congress is currently on course to be “one of the least productive in U.S. history.” In the name of partisanship, it has opted for stasis over passing bills. And thanks to this Congress — and the encroaching influence of Donald Trump –the executive branch is under duress as well. Witness the ludicrous congressional impeachment drives now underway against both President Joe Biden and Homeland Security Secretary Alejandro Mayorkas. So, too, the Supreme Court may be getting its lowest approval ratings ever, having reversed important rulings like Roe v. Wade and the Voting Rights Act.

Rather than rising to the moment, our courts seem to be succumbing to the uncertainty of it all, delaying justice again and again rather than demonstrating the power of our judicial system to operate responsibly. In the current context, should such failure continue, justice delayed could all too easily become democracy denied.

Copyright 2024 Karen Greenberg

Via Tomdispatch.com

But Guantánamo, a prison that, from its founding, has violated U.S. codes of due process, fair treatment, and the promise of justice writ large isn’t the only unnerving legacy of the “war” on terror that still persists. If indefinite detention at Guantánamo was a key pillar of that war, defying longstanding American laws and norms, it was just one of the steps beyond those norms that still persist today.

In the days, weeks, and even years following the attacks of September 11th, the U.S. government took action to create new powers in the name of keeping the nation safe. Two of them, more than two decades after those attacks, are now rife with calls for change. Congress created the first just a week after 9/11 (with but a single no vote). It authorized unchecked and unending presidentially driven war powers that could be used without specified geographical limits — and, strangely enough, that power still remains in place, despite recent congressional efforts to curtail its authority. The second, the expansive use of secret surveillance powers on Americans, is currently under heated debate.

War Powers

The very first new authority created in the name of the war on terror was the Authorization for the Use of Military Force, or AUMF, passed by Congress one week after the 9/11 attacks. It gave the president the power “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”

Unlike past declarations of war or authorizations for war in American history, it was staggeringly vague. It named no actual enemy or geographical locations. It made no reference to what conditions would end the hostilities and the power of that authorization. It was in essence “a blank check” for presidential war powers, as Congresswoman Barbara Lee (D-CA), the single member of Congress to vote no on its passage, warned at the time and has reiterated over the years.

It was also a game-changing authorization. Not only did it lack specifics, but it stripped Congress of its constitutionally authorized power to declare war. In the war on terror, Congress would defer to the president who could decide on his own when and where to launch attacks.

Over the course of the last two-plus decades, that 2001 AUMF has been used repeatedly to do exactly what Barbara Lee feared — namely, broaden the president’s power to commit acts of war against not just the terrorist groups who conspired in the 9/11 attacks, but groups in countries far and wide. According to the Costs of War Project at Brown University’s Watson Institute, as of 2021, it had been used in at least 22 countries, including Afghanistan, Djibouti, Eritrea, Ethiopia, Georgia,  Iraq,  Kenya, Niger, Pakistan, the Philippines, Somalia, and Yemen.

Twenty-two-and-a-half years later, in April 2023, Congressman Gregory Meeks, (D-NY), ranking member of the House Foreign Affairs Committee, acknowledged that the 2001 AUMF had indeed become, in the words of fellow Democrat Annie Kuster (D-NH), “a blank check for presidents from both parties to wage war around the world.”

There have been calls for the repeal of that AUMF over the years, including from — you undoubtedly won’t be surprised to learn — Representative Lee (repeatedly). This past fall, several such bills were introduced in both the House and Senate, including a bipartisan version by Senator Rand Paul (R-KY). 

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In the spring of 2023, Representative Meeks submitted his bill to replace the 2001 AUMF with a new one. In doing so, he sought to reestablish Congress’s constitutionally granted power to declare war, emphasized the statutory obligation of the president to brief Congress after launching any attack, and added that the president must brief Congress on a regular basis as to the uses of the AUMF.

In addition, he inserted language aimed at curtailing the Act’s expansiveness, including a requirement that the enemies to whom it could be applied be specifically named. He suggested three: the original al-Qaeda; the Islamic State Khorasan, based in Afghanistan and known as IS-K; and the Islamic State in Iraq and Syria, or ISIS. Moreover, his bill called for an annual reconsideration of those enemies and added provisions designed to end the president’s right to authorize the AUMF’s use for new groups by claiming they were just extensions of, or forces associated with, the already named groups. Furthermore, his bill prohibited its use against any unnamed enemy, “whether or not the entity is involved in an armed conflict against a force of a United States ally or partner or is an affiliate, associated force, or successor entity of an entity described in such subsection.”

To further constrain the broadness of that 2001 authorization, Meeks included a sunset clause at the end of four years unless it was reauthorized by Congress.

In a world where wars have broken out in Ukraine and now the Middle East, and where additional hostilities are simmering when it comes to the U.S., Iran, China, and Russia, such language would ensure that a separate congressional declaration of war would have to be approved for any enemy the U.S. decided to attack.

In these many ways, the new version of the AUMF would rein in the aberration of those war powers that came into being in the aftermath of 9/11.

And yet the time to redesign the authority of presidential war powers, as created more than 22 years ago by the war on terror, has still not arrived. Meeks’s bill, like Rand Paul’s, gained remarkably little traction. Likewise, a bill from those relatively few congressional representatives calling for a full repeal of that AUMF rather than a replacement of it failed to make it to a vote.

Surveillance

In addition to indefinite detention at Guantánamo and the authorization of endless, expansive war-making, ever more expansive intelligence collection, at home as well as abroad, has been a foundational pillar of the war on terror — and, like the AUMF, bringing it under some control has been mired in debate and controversy in recent months. In 2023, some members of Congress tried to put limits on part of a controversial law, Section 702 of the Foreign Intelligence Surveillance Amendments Act, passed in the summer of 2008 in the waning months of George W. Bush’s presidency. It authorized the collection and sharing of foreign intelligence for the purpose of deterring national security threats.

The problem was not the stated purpose of Section 702 — to acquire information on foreigners abroad who might pose a threat to the United States — but the domestic uses to which it’s been put. The act allows foreigners abroad to be surveilled without a warrant. But since its inception, it’s also been used for warrantless investigations of Americans whose communications have been caught up in sweeping searches of the communications of foreigners — investigations that have become known as “back-door searches.”

Constitutional scholars and civil liberties advocates have fought against Section 702 from its inception, arguing that such searches violate the Fourth Amendment’s guarantee against unreasonable searches and seizures without a warrant based on probable cause of criminal activity. As Elizabeth Gotein of the Brennan Center for Justice explains, “Section 702 lets the government collect the communications of non-Americans located abroad without a warrant. But because Americans talk to people outside the country, the surveillance inevitably sweeps in our private phone calls, emails, and text messages, too — information that the government would normally need a warrant to access.”  

In addition, experts note that, over time, the broad authority to collect the communications of Americans has been abused in alarming ways by the authorities. Gotein points out that 702-based warrantless searches have scrutinized the “communications of Black Lives Matter protesters, members of Congress, a local political party, a state court judge, journalists, and in one case, more than 19,000 contributors to a congressional campaign.” For their part, intelligence officials seeking a continuation of Section 702 point out that recent reforms have led to more responsible use of the authority.

Now, for the third time since its passage, Section 702 is up for renewal. December 31, 2023, was the legal deadline for a vote on it. Unlike the two prior times, however, the renewal date came and went without a vote. Instead, substantial opposition by legal experts and others led to several competing bills calling for Section 702’s reform.

One of the proposed bills, the Government Surveillance Reform Act, introduced by Democratic Senator Ron Wyden of Oregon and Republican Senator Mike Lee of Utah, as well as representatives Warren Davidson (R-OH) and Zoe Lofgren (D-CA) in the House, proposed that a warrant requirement be added to the search requirements when looking at the location data of Americans, web browsing and search records, vehicle data, and the like. In Lee’s version, any queries about the communications collected in a 702 search would, in accordance with the Fourth Amendment, require a warrant for material involving Americans.  The new bill would amount, in Gotein’s words, to closing “the backdoor search loophole.”

The Biden administration has, however, taken a notably aggressive stance against changes to the law, especially when it comes to the introduction of the warrant requirement. Numerous high-ranking officials have spoken out publicly, insisting that the warrant requirement would imperil their ability to keep the nation safe. In his written testimony before Congress, FBI Director Chris Wray insisted that it was “an essential tool” in the counterterrorism toolbox. In fact, he told Congress, it was potentially “the critical link that allows us to identify the intended target or build out the network of attackers so we can stop them before they strike and kill Americans.” Andrew McCabe, acting director of the FBI after Donald Trump fired Director Jim Comey, put it even more starkly in a podcast devoted to the issue, labeling Section 702 “arguably the most significant national security tool in the intelligence community.” He then insisted that the requirement for a warrant was “completely unworkable.”

So fraught was the congressional loggerhead over Section 702 that the deadline for a decision proved unworkable. Instead, Congress inserted an extension to mid-April 2024 in this year’s defense spending bill, signed into law by President Biden three days before Christmas.

It’s likely that, as with the 2001 AUMF, the attempt to change Section 702 will fail. Powers once given, it seems, only prove ever harder to relinquish and, all too sadly, the overreach engendered by the war on terror has by now become an accepted part of the American (and congressional) way of life.

Guantánamo

And then there’s the most glaring symbol of the never-ending, often extralegal legacy of the war on terror, the continued existence of that grim prison at Guantánamo Bay, Cuba. Twenty-two years ago, the Bush administration set up that offshore detention facility for war-on-terror detainees, placing it beyond the reach of military, federal, or international law. Since then, on numerous occasions, new protections for the rights of prisoners there have been put into place, but none of them have addressed one fundamental wrong — namely, the decision that the federal court system was incapable of prosecuting those accused of engaging in terrorism against the United States, including those who conspired in the 9/11 attacks. 

Despite candidate Biden’s assertion that, unlike Donald Trump, he would support the closure of Guantánamo, his appointment of a special representative to oversee the transfer of its prisoners to federal prisons, and the actual transfer of 10 detainees, substantial efforts to finally shut down the prison have been noticeably absent. Once a facility that held 780 men captured in the war on terror, it now holds 30 individuals, 16 of whom have been cleared for transfer elsewhere, pending appropriate security arrangements. Another 10 are scheduled for trial by military commissions but their trials are not expected to begin anytime soon.

Whether it’s an endlessly expansive authorization for eternally conducting war around the world, the redefinition of surveillance powers to include Americans under the guise of a foreign threat, or the seemingly lackadaisical acceptance of Guantánamo as an institution, there is certainly one lasting lesson from the war on terror.  Once powers previously outlawed or at least restrained in the name of fair, just, and responsible laws and norms become codified and implemented, the road back to normalcy is tantamount to impossible.

Perhaps the best we can hope for is that wiser heads will prevail in the days to come. It is, however, a terrifyingly fragile approach, given the outlook for the 2024 election.

Copyright 2024 Karen J. Greenberg

Via Tomdispatch.com

At times due to a failure of will, at times due to a failure of the system itself or the sheer complexity of the logistics involved, and at times due to acts of Congress or the courts, efforts to shut that prison have been eternally stymied. Despite endless acknowledgements that what’s gone on there has defied domestic, international, and military law — not to mention longstanding norms of morality and justice — that prison persists.  

Recently, however, for those of us perpetually looking for a ray or even a glimmer of hope, there have finally been a few developments that seem to signal steps, however tiny, toward closure.

There are still 30 detainees at Guantánamo. Sixteen of them have been deemed no longer threats to the United States and cleared for release, but arrangements have yet to be made to transfer them to another country. Three others are considered too dangerous for release. And eleven have been charged in the military commissions system that was set up in 2006 and revised under President Obama in 2009. One, Ali Hamza Ahmad Suliman al-Bahlul, has been convicted. Another, Abd al-Hadi al-Iraqi, recently pleaded guilty. Now, nine detainees face trials in three separate cases. All of them were tortured at CIA “black sites” for different periods of time between 2003 and 2006.

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Progress in the Biden years has been occurring, even if at a snail’s pace. His administration has said that it intends to close Guantánamo by the end of his term.  And in the last two and a half years, it has indeed reduced the population from 40 to 30, the most recent transfer of a freed prisoner to another country occurring this April. In addition, the Biden administration increased the total number of remaining detainees eligible for release from six to its current 16.

Arranging such transfers has proven painstaking work, requiring complex negotiations with foreign countries, as well as assurances to American officials — and ultimately Congress — that the release will pose no future threat to the United States and that the prisoner will be treated justly in the receiving country. Those releases have been complicated because, after Obama announced at the outset of his presidency that Guantánamo would close within a year, Congress banned any Gitmo detainee from ever being transferred to the United States for any purpose whatsoever, a ban that’s been re-authorized every year since then.

While those detainees cleared for release await transfer to other countries, developments over the past few months have put the military commissions in the forefront of activities aimed at closure.

Until now, the commissions have indeed been a dismal failure. A mere nine convictions have been secured since the passage of the first Military Commissions Act in 2006, all but two through plea deals, and four of the nine have been overturned on appeal. Two remain on appeal. Generally, however, the fact that all of the individuals currently charged and facing trial were initially held at CIA black sites around the world where they were grievously tortured has proven an impassable barrier to trial. Consequently, as New York Times reporters Carol Rosenberg and Charlie Savage have reminded us, “No former C.I.A. detainee has been convicted at trial before a military commission.”

The reasons are many. Obama delayed the trials for three years and the pandemic delayed them further. But by far the biggest obstacle remains the fact that the detainees were horrifically tortured at those black sites. Defense attorneys have persistently insisted that evidence derived under torture should be inadmissible in the proceedings in accordance with the law. While the prosecutors have claimed otherwise, even so many years later, the tortured defendants continue to suffer from the devastating fashion in which they were treated, impeding their defense and causing further delay. In fact, their torture-induced severe psychological instability and often physical incapacity, not to mention instances of distrust of their lawyers, have made it difficult to hold hearings of any sort. As a result, after so many years, the cases remain in the throes of pre-trial hearings and jury selection is still far off.

President Biden has indeed set himself a lower bar than Obama, who issued an early executive order calling for the closure of the prison within a year only to encounter immediate blowback and failure. Still, Biden has made some modest headway in closing Gitmo. Since he took office, most of those who remained in “forever prisoner” limbo have at least been cleared for release. In addition, he’s appointed Tina Kaidanow, former State Department ambassador at large for counterterrorism, to oversee their transfers and has secured the release of 10 prisoners since he took office.

But the recent signs, however incremental, of further movement pertain not to the three remaining “forever prisoners” or to the 16 who have been cleared for release but to those being dealt with by the military commissions established by Congress.

The Military Commissions Cases

The military commissions still face the almost insurmountable hurdle that has haunted them from the start: the legacy of CIA torture. Nevertheless, there has been some recent modest progress, despite the irrevocable damage it caused both individual detainees and our system of justice.

The first signs of movement came in the initial days of the Biden presidency when the Pentagon referred charges against three men to the military commissions. The two Indonesians and one Malaysian captured in Thailand in 2003 had been accused in connection with bombings that targeted two nightclubs in Bali in 2002 and a Marriott Hotel in Jakarta in 2003, resulting in the deaths of more than 200 people, including Americans. A trial date has now been proposed for 2025. (This would, of course, be after Joe Biden’s first term in office.)

Then, there have been signs of progress on potential plea deals. In the summer of 2021, pretrial hearings in the case of Abd al-Hadi al-Iraqi, an Iraqi captured in 2006 and accused of being a senior member of al-Qaeda, began. The al-Iraqi case reached a resolution in June 2022, when he pleaded guilty to war-crime charges for acts committed in Afghanistan. The terms of his plea deal are still unknown. His sentencing is set for 2024.

In addition, starting in the spring of 2022, prosecutors reached out to defendants in the 9/11 case, who have been facing the death penalty, to begin potential plea-deal discussions in which a maximum life sentence would replace the threat of death. But the path towards resolution remains fraught. In September, perhaps in response to pressure from some of the 9/11 families intent on keeping the death penalty in place, President Biden reportedly refused to approve certain details of those proposed deals. As with so much else at Guantánamo, for every step forward, there seem to be two steps back. Still, negotiations are presumably continuing.

In another instance of inching forward, the commissions have recently addressed the case of Ramzi bin al-Shibh, one of the 9/11 defendants. He has displayed severe signs of mental instability, including delusions and hallucinations, owing to his brutal treatment in CIA custody. He’s convinced, for instance, that CIA agents are still pumping unnerving noises and vibrations into his cell, causing sleep deprivation. His inability to talk about much else has stymied the attempts of his lawyers to prepare him for future hearings. Last June 6th, in fact, a panel of psychiatrists and forensic experts declared him unfit to stand trial, given his post-traumatic stress syndrome and his psychotic delusions. Based on their report, Commissions Judge Matthew McCall agreed and, on September 21, 2023, severed him from the trial.

Excluding Tortured Evidence

While there are, in other words, signs of progress via plea deals and severance, the most promising development may be in the longest running military commission case of all, that of Abd al-Rahim al-Nashiri. He’s accused of masterminding the bombing of the USS Cole, a destroyer off the coast of Yemen, in 2000 killing 17 American servicemen.

Al-Nashiri, a Saudi, was held in CIA black sites from 2002 to 2006, while being tortured using techniques like waterboarding, stress positions, forced sodomy, and mock executions. He was finally indicted in 2011, but his case has faced innumerable pretrial hurdles since then, largely involving debates over evidence derived from torture and the possible inadmissibility of it at trial.

Lawyers considered that his case had taken a step forward when the government reversed its position on torture-derived evidence. A Biden Department of Justice brief filed on January 31, 2022, said, “The government recognizes that torture is abhorrent and unlawful, and unequivocally adheres to humane treatment standards for all detainees… [T]he government will not seek admission, at any stage of the proceedings, of any of petitioner’s statements while he was in CIA custody.” That reversed a prior policy allowing such statements to be used in pretrial hearings, if not at trial itself.

Then, in August, the judge in the case made torture the grounds for taking yet another step forward. Like other detainees, al-Nashiri had been interviewed in later years by FBI “clean teams” of agents who attempted to solicit the same confessions without torture and were often successful. The prosecution wanted to use those confessions, but defense attorneys argued that the impact of torture didn’t dissipate with the clean teams, that the detainees feared their torturers were waiting in the wings to punish them if they gave different answers. They insisted that the defendant’s torture trauma and the perpetual fear of more of it remained an ongoing obstacle to statements of truth.

Al-Nashiri’s lawyers filed papers seeking to exclude his clean-team testimony.  Judge Lanny Acosta then took a long-overdue step forward, ruling against the admission of such later confessions. He noted that the clean-team agents “acted professionally and in no way coerced the accused,” even offering “tea and pastries” and reassuring the defendant that he was no longer in CIA custody. Nonetheless, Acosta ruled the statements inadmissible in pre-trial proceedings as well as at trial, since prolonged torture had undoubtedly affected al-Nashiri’s later testimony.

In his 50-page opinion, the judge offered a detailed chronology of the kinds of torture Nashiri had suffered and noted as well the continued use of force against him during his time at Guantánamo, treatment and conditions that could indeed evoke memories of his period in CIA custody. As the judge wrote,

“[H]e was in no position to know whether Drs. Mitchell and/or Jessen [the architects of the CIA’s “Enhanced Interrogation” program] were watching…. prepared to intervene with more abusive treatment… He had no reason to doubt that he might, without notice, suddenly be shipped back to a dungeon like the ones he had experienced before… [or if someone] lurked nearby with a pistol, a drill, or a broomstick, ready to intervene in the event he chose to remain silent or to offer versions of events that differed from what he told his prior investigators.”

As the Judge concluded, “Even if the 2007 statements were not obtained by torture or cruel, inhuman, and degrading treatment, they were derived from it.” Michel Paradis, a senior attorney in the Department of Defense’s Office of the Chief Defense Counsel and counsel for Abd al-Rahim al-Nashiri, has summed up the situation aptly, telling me, “What the refusal to admit the so-called ‘clean team’ statement shows is what anyone who looks at it up close sees. There is nothing clean about torture and there is no way to sanitize it.”

The judge’s decision also marks a potential threshold for the remaining Gitmo cases. If evidence from torture is disallowed, including in pre-trial proceedings, that may lead to future plea deals and even some leniency. Either way, in the wake of Judge Acosta’s decision, the interminably slow Guantánamo cases might just begin to proceed more rapidly.

Add to all this the effect of the passage of time, given among other things the aging not just of Gitmo’s prisoners, but of those working to bring their cases to trial over all these years, many of whom have retired. Judge Acosta gave notice of his retirement from the Army as September ended, while Matthew McCall, the fourth judge to preside over the 9/11 case, has similarly indicated that he’ll be leaving next April, also before it comes to trial. Several of the attorneys for the detainees have retired as well, after so many years representing their clients.

The belated but increasingly accepted notion that torture renders trials impossible, now seemingly shared by the court as well as the defense teams, has become more than mere rhetoric. As Paradis commented to me, “No justice system worth the name permits even the whiff of evidence tainted by torture. We have revolted at the idea for more than a century in this country and even persuaded the world that it should do the same, such as when Ronald Reagan signed the Convention Against Torture.”

Ironically, the acknowledgement of this reality may finally bring these cases to their conclusion. But so many years later, despite being determined to grasp every ray of hope, I suspect that, when it comes to the closing of Guantánamo, the sorrowful record of the past may overshadow the dreams of a better tomorrow. 

Copyright 2023 Karen J. Greenberg

Tomdispatch.com

Last month, in response to a column I wrote for TomDispatch — one of dozens, I’m sad to say, that I’ve done on Guantánamo over these endless years — I received a surprise email: an invitation to attend a meeting at the British Parliament. A group known as the All Party Parliamentary Group (APPG) for Closing the Guantanamo Bay Detention Facility, formed this April, was gathering for the second time. Its stated purpose is “to urge the U.S. administration to close the Guantánamo Bay detention facility, to ensure the safe resettlement of those approved for release, and to ensure that due process is expedited for all the remaining prisoners.” Nine members of the House of Parliament and four Members of the House of Lords have already joined the group.

Thirty men remain in custody at that infamous American prison in Guantánamo Bay, Cuba. Sixteen of those detainees have finally been cleared for release; they are, that is, no longer subject to criminal charges or considered a potential danger to the United States and yet they still remain behind bars. Three other prisoners have never either been charged with a crime or cleared for release. Ten more are still facing trial, while one has been convicted and remains in custody there. For the APPG, the release of those 16 cleared detainees is a paramount goal. 

That meeting I attended included a handful of MPs from all parties, as well as leading figures from British organizations that have been supporting justice for Guantánamo’s detainees for decades. Also present were two former detainees. One was Moazzem Begg, among the first prisoners released in 2005 and repatriated to England, where he is now a senior director at CAGE, an advocacy group focused on the remaining Gitmo detainees. In 2006, he published Enemy Combatant: My Imprisonment at Guantanamo, Bagram, and Kandahar, an early account of the injustices and cruelties in America’s war-on-terror prisons. The other was Mohamedou Salahi, whose book Guantánamo Diary led to the dramatic film The Mauritanian about his life at that infamous prison. A third former detainee, Mansoor Adayfi, author of Don’t Forget Us Here, had been transferred from Gitmo to Serbia in 2016. Though invited to attend, his visa wasn’t approved in time. 

That meeting was but one of several recent events in which organizations outside the United States have issued detailed impassioned calls for this country to finally address the ongoing nightmare it created so long ago at Guantánamo. 

Site Visits and U.N. Reports

In April, Patrick Hamilton, the head of the International Committee of the Red Cross (ICRC), made a site visit to Guantánamo and issued “a rare statement of alarm.” It was, as New York Times reporter Carol Rosenberg pointed out, the ICRC’s 146th visit to the prison since it opened in January 2002. That short statement urged American officials to address the deteriorating health of the prisoners there, concluding, “The planning for an aging population,” it concluded, “cannot afford to wait.”.

Then, in mid-June, the U.N. Human Rights Council followed up its own site visit by issuing a comprehensive, devastatingly critical report. Fionnuala Ni Aoláin, that council’s special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, focused on the potential war crimes and “crimes against humanity” committed against the detainees during and after their time at that island prison, now in its 21st year of existence. 

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Ni Aoláin was the perfect person for the job. She’s long defended human rights and international law, with a particular focus on issues of justice and human dignity. In 2013, she co-edited Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective. Her 2023 report, clear, fact-based, and measured in tone, is in many ways a step above that of any of its predecessors. 

Hers was, of course, anything but the first U.N. report to address the sins of Guantánamo. In 2010, the U.N. Human Rights Council prepared a detailed report on “global practices in relation to secret detention in the context of countering terrorism.” It focused on violations of international law carried out globally, often involving exceptionally cruel treatment and outright torture. Alongside sections on countries throughout Africa and the Middle East that abused captives, the torture and misuse of prisoners in the American war on terror at CIA black sites around the world and Guantánamo Bay took center stage. The study focused special attention on the lack of accountability when it came to Americans who had implemented or abetted the mistreatment and secret detention of prisoners.

Twelve years later, in March  2022, Ni Aoláin, five years into her role as special rapporteur wrote a follow-up to the report, highlighting “the abject failure to implement the recommendations” of that study and the “tragic and profound consequences for individuals who were systematically tortured, rendered across borders, arbitrarily detained, and deprived of their most fundamental rights.” Her update “reiterates the demand that accountability, reparation, and transparency be implemented by those states responsible for these grave human rights violations.”

Now, she has issued her new 23-page report, adding significantly to the debate over liberty and security that has defined discussions over Guantánamo since its birth in January 2002.

A Singular Report

A notable distinction between this report and those that preceded it is the access the special rapporteur was granted by the Biden administration. It was, in fact, the first visit ever to Guantánamo by an independent U.N. investigator. After two decades in which administration after administration placed severe restrictions on journalists as well as non-governmental and international organizations when it came to covering that prison, the Biden administration granted Ni Aoláin remarkably full access “to former and current detention facilities and to detainees, including ‘high value’ and ‘non-high value’ detainees.”

The interviews she conducted with those still imprisoned there were both confidential and unsupervised. She was allowed to deal with “military and civilian personnel, military commission personnel, and defense lawyers.” She also “interviewed victims, survivors, and families of victims of the September 11, 2001 terrorist attacks, former detainees in countries of resettlement or repatriation, and human rights and humanitarian organizations.” Ni Aoláin commended the Biden administration for allowing such unprecedented access. “Few states.,” as she puts it, “exhibit such courage.” 

In the process, she drew a uniquely sweeping picture of Guantánamo — from the period after the horrifying 9/11 attacks through the widespread and gruesome torture of prisoners at CIA black sites to the grim details of detention at Gitmo itself to the often unjust and harmful fates of the detainees who were finally released to the persistent challenges that lie ahead. It’s the first report to tie together, historically as well as legally, the many grim pieces of the post-9/11 story that have previously been underappreciated.  

Like its predecessors, Ni Aoláin’s report reiterates the sins of Guantánamo: the physical and psychological abuse and outright cruelties committed there and the lack of any access to justice for its prisoners. She also reminds us that “the vast majority of the men rendered and detained there were brought without cause and had no relationship whatsoever with the events that took place on 9/11.” She calls out the United States for its widespread ongoing violations of human rights and international law and mentions numerous times that the way it dealt with its detainees amounted to “cruel, inhuman, and degrading treatment.” 

Her report, however, also potentially shifts the never-ending discussion of Guantánamo to new ground.

Putting the Focus on the Prisoners 

As a start, Ni Aoláin looks beyond policymaking to the more subtle forms of injustice and harm that became the daily essence of Guantánamo. She particularly focuses on what she calls the “arbitrariness” and the damage it has caused. “Arbitrariness,” she concludes, “pervades the entirety of the Guantánamo detention infrastructure,” leading to a persistent lack of predictability in treatment. While Standard Operating Procedures (SOPs) do exist when it comes to “detainee reception and transfer, restraints, cell block searches, mess operations, religious accommodations, and medication distribution,” the deeper reality has been one of constant, cruel, and unpredictable deviations from those SOPs.

In fact, “arbitrariness, confusion, and inconsistency” define life at Guantánamo and have only been exacerbated by the secrecy with which those SOPs are guarded, further intensifying the cruel and inhuman treatment that has always defined that prison. Ni Aoláin suggests that it’s finally time for transparency to come to Gitmo. For example, many of the detainees suffer from the long-term effects of torture, a past all too lacking in transparency, and neither they nor their lawyers have access to their unclassified medical files.

She underscores her focus on finally bringing humanity to Gitmo by arguing that the widespread abuses Americans committed over the years, including by setting up a prison offshore of American justice, also significantly impacted the families of those who were killed in the attacks of September 11, 2001. She begins with torture, suggesting “that the systematic rendition and torture at multiple (including black) sites and thereafter at Guantánamo Bay, Cuba — with the entrenched legal and policy practices of occluding and protecting those who ordered, perpetrated, facilitated, supervised, or concealed torture — comprise the single most significant barrier to fulfilling victims’ rights to justice and accountability.” In her view, the use of torture was “a betrayal of the rights of victims,” too, by making the holding of trials impossible to this day and so making both accountability and closure inconceivable for the victims’ families.  

While widening the lens to include a larger pool of victims, Ni Aoláin also widens the time frame.  The mistreatment of detainees at Gitmo, she emphasizes, continues to this day. “Regrettably,” she writes, “the vast majority of detainees continue to experience sustained human rights violations beginning with the very process of transfer to the country of return or resettlement.”

In fact, the transfer of former prisoners from that prison to countries like the United Arab Emirates (UAE), Serbia, Kazakstan, and Slovakia has often resulted in yet more degradation, including utter social ostracism, the inability to obtain work, or even additional transfers to countries where yet more cruel and inhuman treatment has subsequently occurred. Sadly, for those “released” from that prison, the term “Guantanamo 2.0” best describes their situations. 

One case in particular has been a focal point for the APPG in London: Ravil Mingazov, a Russian citizen granted asylum in Great Britain. He was captured in Pakistan in 2002. Accused of being associated with al-Qaeda and the Taliban, he would then be transported to Gitmo where he remained until 2017 when he was cleared for release to the UAE. After his arrival there, however, he was again imprisoned, despite assurances that his release would include rehabilitation and support for rebuilding his life. He’s now been detained there for six years. In 2021, reports circulated that the UAE was trying to send Mingazov back to Russia, where he would face probable imprisonment and mistreatment. To make matters worse, for the past two years, his family has had no news of him. 

Ni Aoláin also highlights American attempts to destroy certain parts of Guantánamo and so functionally erase the record of what went on there. She calls instead for “the preservation and access to both prior and present detention sites,” as well as medical records and digital evidence. The crimes committed at Guantánamo, she emphasizes, need to be kept on the record and addressed, adding that “the U.S. government has an ongoing obligation to investigate the crimes committed [there], including an assessment of whether they meet the threshold of war crimes and crimes against humanity.” 

Worse yet, redress for the victims of the 9/11 attacks and their families remains lacking. They continue to need treatment in ways not provided for and she recommends a “comprehensive audit of existing medical support (physical and psychological) for victims and survivors” and a commitment “to comprehensive lifelong holistic support for survivors.” 

Succinct, measured, and profoundly disturbing, her report calls for a way forward that directly addresses the crimes of the past, including the need for public apology, compensation to former detainees, and the shutting down of that infamous prison. Her message: after all these years, even decades, the harm and the crimes associated with Guantánamo are still unending.  

Where We Are Now

While the U.N., the ICRC, the British Parliament, and various nongovernmental organizations focus on Guantánamo’s sins and its painful legacy, the United States continues to fail to close the prison, even though the need for closure was acknowledged in 2006 by no less than its “founder,” President George W. Bush. On July 14th, when the House passed its version of the latest National Defense Authorization Act, it not only kept in place a prohibition on the use of funds to close Guantánamo but extended a congressional ban on using such funds to transfer detainees to the United States or six countries in the greater Middle East, making the end of Gitmo that much harder. 

With her steady hand and deployment of facts, Ni Aoláin was unsparing in her conclusions about the injustice and perpetual cruelty that still is Guantánamo. Yes, she appreciates any movement forward, even at this late date, including “the openness and willingness” of the Biden administration to allow her to visit the prison. Still, she couldn’t be clearer on what, 21 years later, is needed: accountability for the perpetrators and restitution for the victims.

Closing the prison, if it ever actually happens, will not be enough. Sadly, even such an act will not bring true closure to the sins of America’s forever prison.

Copyright 2023 Karen J. Greenberg

Via Tomdispatch.com

Think of us, the American public, as that blindfolded child when it comes to our government’s torture program that followed the 9/11 disaster and the launching of the ill-fated war on terror. We’ve been left to search in the dark for what so many of us sensed was there.

We’ve been groping for the facts surrounding the torture program created and implemented by the administration of President George W. Bush. For 20 years now, the hunt for its perpetrators, the places where they brutalized detainees, and the techniques they used has been underway. And for 20 years, attempts to keep that blindfold in place in the name of “national security” have helped sustain darkness over light.

From the beginning, the torture program was enveloped in a language of darkness with its secret “black sites” where savage interrogations took place and the endless blacked-out pages of documents that might have revealed more about the horrors being committed in our name. In addition, the destruction of evidence and the squelching of internal reports only expanded that seemingly bottomless abyss that still, in part, confronts us. Meanwhile, the courts and the justice system consistently supported those who insisted on keeping that blindfold in place, claiming, for example, that were defense attorneys to be given details about the interrogations of their clients, national security would somehow be compromised.

Finally, however, more than two decades after it all began, the tide may truly be turning.

Despite fervid attempts to keep that blindfold in place, the search has not been in vain. On the contrary, over these last two decades, its layers have slowly worn away, thread by thread, revealing, if not the full picture of those medieval-style practices, then a damning set of facts and images relating to torture, American-style, in this century. Cumulatively, investigative journalism, government reports, and the testimony of witnesses have revealed a fuller picture of the places, people, nightmarish techniques, and results of that program.

First Findings

The fraying of that blindfold took endless years, starting in December 2002, when Washington Post writers Dana Priest and Barton Gellman reported on the existence of secret detention and interrogation centers in countries around the planet where cruel, unlawful techniques were being used against war-on-terror captives in American custody. Quoting from a 2001 State Department report on the treatment of captives, they wrote, “The most frequently alleged methods of torture include sleep deprivation, beatings on the soles of the feet, prolonged suspension with ropes in contorted positions and extended solitary confinement.”

Less than a year later, the American Civil Liberties Union, along with other groups, filed a Freedom of Information Act request (the first of many) for records pertaining to detention and interrogation in the war on terror. Their goal was to follow the trail leading to “numerous credible reports recounting the torture and rendition of detainees” and our government’s efforts (or the lack thereof) to comply “with its legal obligations with respect to the infliction of cruel, inhuman, or degrading treatment or punishment.”

Then, in 2004, the blindfold began to show some initial signs of wear. That spring, CBS News’s 60 Minutes II showed the first photographs of men held at Abu Ghraib, an American-controlled prison in Iraq. They were, among other things, visibly naked, hooded, shackled, and threatened by dogs. Those pictures sent journalists and legal advocates into a frenzied search for answers to how such a thing had happened in the wake of the Bush administration’s invasion of Iraq. By that fall, they had obtained internal government documents exempting any war on terror captives from the usual legal protections from cruelty, abuse, and torture. Documents also appeared in which specific techniques of torture, renamed “enhanced interrogation techniques” (EITs), were authorized by top officials of the Bush administration. They would be used on prisoners in secret CIA locations around the world (119 men in 38 or more countries).

None of this, however, yet added up to “Tag! I found you!”

Senator Feinstein’s Investigation

Before George Bush left office, Senator Dianne Feinstein began a congressional investigation into the CIA interrogation program. In the Obama years, she would battle to mount a full-scale one into the torture program, defying most of her colleagues, who preferred to follow President Obama’s advice to “look forward as opposed to looking backwards.”

But Feinstein refused to back down (and we should honor her courage and dedication, even as we witness the present drama of her insistence on remaining in the Senate despite a devastating process of aging).  Instead of retreating, Feinstein only doubled down and, as chair of the Senate Select Committee on Intelligence, launched an in-depth investigation into the torture program’s evolution and the grim treatment of those prisoners at what came to be known as “CIA black sites.”

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Feinstein’s investigator, Daniel Jones, spent years reading through six million pages of documents. Finally, in December 2014, her committee issued a 525-page “executive summary” of his findings. Yet his full report — 6,700 pages with 35,300 footnotes — remained classified on the grounds that, were the public to see it, national security might be harmed. Still, that summary convincingly laid out not just the widespread use of torture but how it “proved not to be an effective means of obtaining accurate information.” In doing so, it dismantled the CIA’s justification for its EITs which rested on “claims of their effectiveness.”

Meanwhile, Leon Panetta, Obama’s director of the CIA, conducted an internal investigation into torture. Never declassified, the Panetta Review, as it came to be known, reportedly found that the CIA had inflated the value of the information it had gotten with the use of torture techniques. For example, in the brutal interrogation of the alleged mastermind of 9/11, Khalid Sheikh Mohammed, the Agency claimed that those techniques had elicited information from him that helped thwart further terrorist plots. In fact, the information had been obtained from other sources. The review reportedly acknowledged that EITs were in no way as effective as the CIA had claimed.

The Cultural Sphere

In those years, bits of light from the cultural world began to illuminate the dark horror of those enhanced interrogation techniques. In 2007, after President Bush had acknowledged the use of just such “techniques” and had moved 14 detainees from the CIA’s black sites to Guantánamo, his infamous offshore prison of injustice in Cuba, documentary filmmaker Alex Gibney directed Taxi to the Dark Side. It told the story of Dilawar, a taxi driver in Afghanistan who died in American custody after severe mistreatment. That film would be one of the earliest public exposés of cruelty and mistreatment in the war on terror.

But such films didn’t always yield doses of light. In 2012, for instance, Zero Dark Thirty, a movie heavily influenced by CIA advisers, argued that those harsh interrogations had helped keep America safer — specifically by leading U.S. authorities to bin Laden, a meme often repeated by government officials. In fact, reliable information leading to bin Laden had been obtained without those techniques.

Increasingly, however, films began to highlight the voices of those who had been tortured. The Mauritanian, for example, was based on Guantánamo Diary, a memoir by Mohamedou Ould Slahi, a tortured Mauritanian held at that prison for 14 years. Slahi, never charged, was finally released and returned to Mauritania. As New York Times reporter Carol Rosenberg summed up his experience, “The confessions he made under duress [were] recanted [and] a proposed case against him [was] deemed by the prosecutor to be worthless in court because of the brutality of the interrogation.”

Abu Zubaydah

Last year, award-winning documentary filmmaker Alex Gibney once again gave us a film on torture, The Forever Prisoner, focused on a Guantánamo detainee, Abu Zubaydah, whose real name is Zayn al-Abidin Muhammed Husayn. On him, the CIA first tested its harsh interrogation techniques, claiming he was a leading member of al-Qaeda, an assumption later disproved. He remains one of only three Gitmo detainees neither charged by the military commissions at that prison, nor cleared for release.

Nothing captures the futility of the blindfold — or sometimes even the futility of lifting it — more than Zubaydah’s story, which was at the heart of the story of torture in these years. The Senate Select Committee’s 525-page executive summary referred to him no less than 1,343 times.

Captured in Pakistan in 2002 and first taken to a series of black sites for interrogation, Zubaydah was initially believed to be the third highest-ranking member of al-Qaeda, a claim later abandoned, along with the allegation that he had even been a member of that terrorist organization. He was the detainee for whom enhanced interrogation techniques were first authorized by National Security Advisor Condoleezza Rice, relying in part on the Justice Department’s greenlighting of such techniques as “lawful” rather than as torture (legally forbidden under both domestic and international law). Joe Margulies, Zubaydah’s lawyer, summarized the horrific techniques used on him this way:

“His captors hurled him into walls and crammed him into boxes and suspended him from hooks and twisted him into shapes that no human body can occupy. They kept him awake for seven consecutive days and nights. They locked him, for months, in a freezing room. They left him in a pool of his own urine. They strapped his hands, feet, arms, legs, torso, and head tightly to an inclined board, with his head lower than his feet. They covered his face and poured water up his nose and down his throat until he began to breathe the water, so that he choked and gagged as it filled his lungs. His torturers then left him to strain against the straps as he began to drown. Repeatedly. Until, just when he believed he was about to die, they raised the board long enough for him to vomit the water and retch. Then they lowered the board and did it again. The torturers subjected him to this treatment at least eighty-three times in August 2002 alone. On at least one such occasion, they waited too long and Abu Zubaydah nearly died on the board.”

In addition, as Dexter Filkins reported in the New Yorker in 2016, Zubaydah lost his left eye while in CIA custody.

As the Feinstein committee’s torture report makes clear, CIA personnel present at that black site cabled back to Washington the importance of erasing any information about the nature of Zubaydah’s interrogation, implicitly acknowledging just how wrongful his treatment had been. The July 2002 cable asked for “reasonable assurance that [Abu Zubaydah] will remain in isolation and incommunicado for the remainder of his life.” CIA higher-ups assured the agents that “all major players are in concurrence that [Abu Zubaydah] should remain incommunicado for the remainder of his life.”

Sadly enough, that promise has been kept to this very day. In 2005, CIA officials authorized the destruction of the tapes of Zubaydah’s questioning and, never charged with a crime, he is still in Guantánamo.

And yet, despite the promise that he would remain incommunicado, with each passing year we learn more about what was done to him. In October 2021, in fact, in the United States v. Zubaydah, the justices of the Supreme Court for the first time openly discussed his treatment and Justices Sonia Sotomayer, Neil Gorsuch, and Elena Kagan publicly used the word “torture” to describe what was done to him.

Elsewhere as well, the blindfold has been shredded when it comes to the horror of torture, as ever more of Zubaydah’s story continues to see the light of day. This May, the Guardian published a story about a report done by the Center for Policy and Research at Seton Hall University Law School that included a series of 40 drawings Zubaydah had made and annotated at Guantánamo. In them, he graphically depicted his torture at CIA black sites and at that prison.

The images are beyond grotesque and, like a cacophonous symphony you can’t turn off, it’s hard to witness them without closing your eyes. They show beating, shackling from the ceiling, sexual abuse, waterboarding, confinement in a coffin, and so much more. In one picture that he titled “The Vortex,” the techniques were combined as Zubaydah — in a self-portrait — cries out in agony. Attesting to the accuracy of the scenes he drew, the faces of his torturers have been blacked out by the authorities to protect their identities.

As the Guardian‘s Ed Pilkington reported, Helen Duffy, Mr. Zubaydah’s international legal representative, highlighted how “remarkable” it was that his drawings had ever seen the light of day even though he hasn’t “been able to communicate directly with the outside world” in all these endless years.

Calls for Action

In the years of the Biden presidency, the international community has focused on Guantánamo in unprecedented ways. In January 2022, “after 20 years and well over 100 visits,” the International Committee of the Red Cross (the ICRC) called for the release of as many of the remaining prisoners there as possible and, more recently, raised alarm over the failing health and premature aging of its 30 aging inmates.  

Recently, the United Nations carved out new ground as well. In April, the U.N. Working Group on Arbitrary Detention issued an opinion condemning the brutality long used against Mr. Zubaydah and called for his immediate release. That group further noted that the continued detention of the prisoners at Guantánamo could potentially “constitute crimes against humanity.”

With each passing year, ever more details about Washington’s torture programs have come to light. Yet, even now, ferocious attempts are still being made to keep the blindfold in place. As a result, to this day we’re left searching, arms extended, while those who have crucial information about this country’s nightmarish commitment to torture do their best to avoid us, hoping that the endless passage of time will keep them out of reach until we pursuers finally run out of energy.

To this day, much still remains in darkness, while Congress and American policymakers continue to refuse to address the legacy of such wrongdoing. But as the constant dribble of information suggests, the story simply won’t go away until, someday, the United States officially acknowledges what it did — what, if others were now doing it, would be instantly denounced by the same lawmakers and policymakers. That history of torture won’t go away, in fact, until this country apologizes for it, declassifies as much of the Feinstein report as possible, and provides for the rehabilitation of Abu Zubaydah and others whose physical and psychological health was savaged by their mistreatment at American hands.

It’s one thing to say, as Barack Obama told Congress a month into his presidency, that the United States “does not torture.” It’s another to expose the misdeeds of the war on terror and accept the costs as deterrence against it ever happening again.

Copyright 2023 Karen J. Greenberg

Via Tomdispatch.com

A year and a half later, it’s worth reflecting on where the United States stands when it comes to both that forever war against terrorism and war generally. As it happens, the war on terror is anything but ended, even if it’s been overshadowed by the war in Ukraine and simmering conflicts around the globe, all too often involving the United States. In fact, it now seems as if this country is moving at breakneck speed out of the era of Forever War and into what might be thought of as the era of Eternal War.

Granted, it’s hard even to keep track of the potential powder kegs that seem all too ready to explode across the globe and are likely to involve the U.S. military in some fashion. Still, at this moment, perhaps it’s worth running through the most likely spots for future conflict.

Russia and China

In Ukraine, as each week passes, the United States only seems to ramp up its commitment to war with Russia, moving the slim line of proxy warfare ever closer to a head-to-head confrontation between the planet’s two great military powers. Although the plan to avoid a direct confrontation with Russia clearly remains in effect, once taboo forms of support for Ukraine have over time become more acceptable.

As of early March, the United States, one of more than 50 countries offering some form of support, had allocated aid to Ukraine on 33 separate occasions, amounting to more than $113 billion worth of humanitarian, military, and financial assistance. In the process, the Biden administration has agreed to provide increasingly lethal weaponry, including Bradley fighting vehicles, Patriot missile batteries, and Abrams tanks, while pressure for even more powerful weaponry like Army Tactical Missile Systems (ATACMs) and F-16s is only growing. As a recent Council on Foreign Relations report noted, Washington’s aid to Ukraine “far exceeds” that of any other country.

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In recent weeks, the theater of tension with Russia has expanded beyond Ukraine, notably to the Arctic, where some experts see potential for direct conflict between Russia and the U.S., branding that region a “future flashpoint.” Meanwhile, Russian President Vladimir Putin recently raised the possibility of storing tactical nuclear weapons in neighboring Belarus, perhaps more of a taunt than a meaningful gesture, but nonetheless another point of tension between the two countries. 

Leaving Ukraine aside, China’s presence looms large when it comes to predictions of future war with Washington.  On more than one occasion, Biden has stated publicly that the United States would intervene if China were to launch an invasion of the island of Taiwan. Tellingly, efforts to fortify the U.S. military presence in the Asia-Pacific region have ratcheted up in recent months.

In February, for example, Washington unveiled plans to strengthen its military presence in the Philippines by occupying bases in the part of that country nearest to Taiwan. All too ominously, four-star Air Force General Mike Minihan went so far as to suggest that this country might soon be at war with China. “I hope I am wrong. My gut tells me [we] will fight in 2025,” he wrote in a memo to the officers he commands in anticipation of a future Chinese move on Taiwan. He also outlined a series of aggressive tactics and weapons training maneuvers in preparation for that day. And the Marines have been outfitting three regiments for a possible future island campaign in the Pacific, while war-gaming such battles in Southern California.  

North Korea, Iran, and the War on Terror

North Korea and Iran are also perceived in Washington as simmering threats.

For months now, North Korea and the U.S. have been playing a game of nuclear chicken in parallel shows of missile strength and submarine maneuvers, including the North’s mid-March launch of an intercontinental ballistic missile capable of carrying a nuclear warhead and, at least theoretically, reaching the U.S. mainland. In its leader Kim Jong-un’s words, it was intended to “strike fear into the enemies” of his country. In the last days of March, his military even launched a reputed underwater nuclear-capable drone, taking the confrontation one step further. Meanwhile, Washington has been intensifying its security commitments to South Korea and Japan, flexing its muscles in the region, and upping the ante with the biggest joint military drills involving the South Korean armed forces in years.

As for Iran, it’s increasingly cooperating with an embattled Russia when it comes both to sending drones there and receiving cyberweapons from that country. And since Donald Trump pulled the United States out of the JCPOA nuclear treaty with Iran in May 2018, tensions between Washington and Teheran have only intensified. International monitors have recently concluded that Iran may indeed be approaching the brink of being able to produce nuclear-grade enriched uranium. At the same time, Israel has been ramping up its threats to attack Iran and draw the United States into such a crisis.

Meanwhile, smaller conflicts are sizzling around the globe, many seemingly tempting Washington to engage more actively. On President Biden’s agenda in his recent meeting with Canadian Prime Minister Justin Trudeau, for instance, was the possibility of deploying a Canadian-led multinational force to Haiti to help quell the devastating gang violence ravaging that country. “We believe that the situation on the ground will not improve without armed security assistance from international partners,” a National Security Council official told NPR’s Morning Edition ahead of the summit. Trudeau, however, backed away from accepting such a role. What Washington will now do — fearing a wave of new immigrants — remains to be seen.  

And don’t forget that the forever war on terror persists, even if in a somewhat different and more muted form.  Although the U.S. has left Afghanistan, for instance, it still retains the right to conduct “over the horizon” air strikes there. And to this day, it continues to launch targeted strikes against the al-Shabaab terror group in Somalia, even if in far lower numbers than during the Trump years when drone strikes reached an all-time high of more than 200. So far, the Biden administration has launched 29 such strikes in the last two years.

American drone attacks persist in Syria as well. Only recently, in retaliation for a drone attack against U.S. troops there that killed an American contractor and wounded another, as well as five soldiers, the Biden administration carried out strikes against Iranian-backed militias. According to National Security Council spokesperson John Kirby, President Biden has still not ruled out further retaliatory acts there. As he told Margaret Brennan on Face the Nation at the end of March, referring to ISIS in Syria, “We have under 1,000 troops [there] that are going after that network, which is, while greatly diminished, still viable, and still critical. So we’re going to stay at that task.”

Other than Syria and Iraq (where the U.S. still has 2,500 troops), the war on terror is now particularly focused on Africa. In the Sahel region, the swath of that continent just below the Sahara Desert, including Chad, Niger, Nigeria, Mauritania, and Sudan, among other countries, the legacies of past terrorism and the war in Ukraine have reportedly converged, creating devastatingly unstable and violent conditions, exacerbating what USAID official Robert Jenkins has called “decades of undelivered promises.”

As journalist Walter Pincus put it recently, “With little public notice, the two-decades-long U.S. war on terrorism continues in the Sahel.” According to the 2023 Global Index for Terrorism, that region is now the “epicenter of terrorism.” The largest U.S. presence in West Africa is in Niger, which, as Nick Turse reports, “hosts the largest and most expensive drone bases run by the U.S. military,” intended primarily to counter terrorist groups like Boko Haram, al-Qaeda, and the Islamic State. Weapons from the war in Ukraine have found their way to such terrorist groups, while climate-change induced weather nightmares, deepening food insecurity, and ever more dislocated populations have led to an increasingly unstable situation in the region. Complicating things further, the Wagner group, the Russian mercenary paramilitary outfit, has been offering security assistance to countries in the Sahel, intensifying the potential for violence. U.S. military forces and bases in the region have grown apace as the war on terror in Africa intensifies.

Legislative Support for Eternal Warfare

Legislative moves in Congress unabashedly reflect this country’s pivot to Eternal War. Admittedly, the push for an ever-expanding battlefield didn’t start with the great-power conflicts leading today’s headlines. The 2001 congressional Authorization for the Use of Military Force (AUMF), which paved the way for the invasion of Afghanistan, gave the president essentially unlimited authority to take offensive action in the name of countering terrorism by not naming an enemy or providing any geographical or time limits. Since the fall of 2001, just as Representative Barbara Lee (D-CA) predicted while casting the only vote against it, that AUMF has served as a presidential “blank check” when it comes to authorizing the use of force more or less anywhere.

Former State Department lawyer Brian Finucane has pointed out that the perpetuation of “much of the legal, institutional, and physical infrastructure that underpin this decades-long” war on terror is now being extended to the Sahel, no matter the predictable results. As Soufan Group terrorism expert Colin Clarke told me, “A global war on terrorism has never been winnable. Terrorism is a tactic. It can’t be fully defeated, just mitigated and managed.”

Nevertheless, the 2001 AUMF remains on the books, available to be tapped in ever-expansive ways globally. Only this month, Congress once again voted against its repeal.

Admittedly, the Senate did recently repeal the 1991 and 2002 authorizations for the use of force that undergirded the Iraq War of 1991 and the 2002 invasion of that country. Notably, a new amendment proposed by Senator Lindsey Graham (R-SC) to also create an AUMF against Iran-backed militias in the region was defeated. As recent military engagements in Syria have shown, new authorizations have proven unnecessary.

Congress seems to be seconding the move from Forever War to Eternal War without significant opposition. In fact, when it comes to funding such a future, its members have been all too enthusiastic. As potential future war scenarios have expanded, so has the Pentagon budget which has grown astronomically over the past two years. In December, President Biden signed the 2023 National Defense Authorization Act, which granted the Pentagon an unprecedented $816.7 billion, 8% more than the year before (with Congress upping the White House’s suggested funding by $45 billion).

And the requests for the 2024 budget are now in. As Pentagon expert William Hartung reports, at $886 billion dollars, $69 billion more than this year’s budget, Congress is on a path to enacting “the first $1 trillion package ever,” a development he labels “madness.” “An open-ended strategy,” Hartung explains, “that seeks to develop capabilities to win a war with Russia or China, fight regional wars against Iran or North Korea, and sustain a global war on terror that includes operations in at least 85 countries is a recipe for endless conflict.”

Whatever Happened to the Idea of Peace?

When it comes to the war in Ukraine, there is a widely shared sense that it’s going to last and last — and last some more. Certain experts see nothing short of years of fighting still on the horizon, especially since there seems to be little appetite for peace among American officials.

While French President Emmanuel Macron and German Chancellor Olaf Scholz have reportedly urged Ukrainian President Volodymyr Zelensky to consider peace talks, they seem to have few illusions about how long the war is likely to go on. For his part, Zelensky has made it clear that, when it comes to Russia, “there is nothing to talk about and nobody to talk about over there.” According to Alexander Gabuev, a senior fellow at the Carnegie Endowment for International Peace, the mood in both Moscow and Kyiv could be summed up as “give war a chance.”

China is, it seems, an outlier when it comes to accepting a long-term war in Ukraine. Even prior to his visit to Russia in late March, President Xi Jinping offered to broker a ceasefire, while releasing a position paper on the perils of continued warfare and what a negotiated peace might aim to secure, including supply-chain stability, nuclear power plant safety, and the easing of war-caused global humanitarian crises. Reportedly, the summit between Xi and Putin made little headway on any of this.

Here in the U.S., calls for peace talks have been minimal. Admittedly, last November, Chairman of the Joint Chiefs of Staff Mark Milley reportedly told the Economic Club of New York, “When there’s an opportunity to negotiate, when peace can be achieved, seize it. Seize the moment.” But there has been no obvious drive for diplomatic negotiations of any sort in Washington. In fact, John Kirby, the National Security Council spokesperson, responded to President Xi’s proposal this way: “We don’t support calls for a ceasefire right now.” The Russians, he claimed, would take such an opportunity “to only further entrench their positions in Ukraine… [and] rebuild, refit, and refresh their forces so that they can restart attacks on Ukraine at a time of their choosing.”

Disturbingly, American calls for peace and diplomacy have tended to further embrace the ongoing war. The New York Times editorial board, while plugging future peace diplomacy, suggested that only continued warfare could get us to such a place: “[S]erious diplomacy has a chance only if Russia accepts that it cannot bring Ukraine to its knees. And for that to happen, the United States and its allies cannot waver in their support [of Ukraine].” More war and nothing else, the argument goes, will bring peace. The pressure to provide ever more powerful weapons to Ukraine remains constant on both sides of the aisle. As Robert Wicker, the top Republican on the Senate Armed Services Committee put it, “[T]his approach of ‘more, better, faster’ would give the Ukrainians a real shot at victory.”

Whether in Ukraine, in the brewing tensions of what’s being called a “new cold war” in Asia, or in this country’s never-ending version of the war on terror, we now live in a world where war is ever more accepted as a permanent condition.  On the legal, legislative, and military fronts, it has become a mainstay for what passes as national security activity. Some of this, as many critics contend, is driven by economic incentives like lining the pockets of the giant weapons-making corporations to the tune of multibillions of dollars annually; some by what passes for ideological fervor with democracy pitched against autocracy; some by the seemingly never-ending legacy of the war on terror.

Sadly enough, all of this prioritizes killing and destruction over life and true security. In none of it do our leaders seem to be able to imagine reaching any kind of peace without yet more weapons, more violence, more conflicts, and more death.

Who even remembers when the First World War was known as “the war to end all wars”? Sadly, it seems that the era of Eternal War is now upon us. We should at least acknowledge that reality.

Copyright 2023 Karen J. Greenberg

Via Tomdispatch.com

As the optics suggested, there were parallels indeed, underscoring a previously underappreciated fragility in our democratic framework: the period of transition between presidencies.

Wreaking Havoc

Those January 8th rioters in Brazil were protesting the presidency of Luiz Inácio Lula da Silva, better known as Lula, the politician Barack Obama once referred to as “my man.”

Like President Trump, Lula’s predecessor, rightwing autocrat Jair Bolsonaro, had been voted out of office by a slim margin. Deemed “the Trump of the tropics,” he had followed the former U.S. president’s lead in seeding doubt as to election integrity in the months leading up to the vote. Like Trump, he also predicted election fraud and spread stories about rigged voting machines. Small wonder given his team’s ties to former Trump White House chief strategist Steve Bannon who had consulted with the Bolsonaro team and insisted that Brazil’s election, too, would be stolen, while afterwards praising the rioters as “Brazilian freedom fighters.”

The fervent Bolsonaro supporters, like their American counterparts, wreaked havoc, destroying furniture at their Supreme Court, works of art in the presidential palace, and generally leaving the insides of the buildings they stormed, including that country’s congress, “in ruins.” 

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Far more overtly than in the United States, many in the security forces in Brazil seemed to sympathize with the protesters. A Brookings report found that “while the attack unfolded, Bolsonaro supporters met surprisingly limited resistance. Police officers… were caught on camera chatting with protesters and buying coconut water.” It added that “several military officials reportedly participated in the vandalism” and called the apparent “total complacency of local government and public security officials” alarming.

Still, if you peek beneath the surface, you’ll find some important differences.

As a start, Lula had already been installed as president when that presidential palace was stormed — and he wasn’t there — while Joe Biden was still 15 days away from his inauguration when the January 6th uprising occurred.

It’s hard to overstate the significance of that. The riots in Brasilia did not, in fact, disrupt the actual transfer of power. Although there had been protests in the run-up to Lula’s installation as president, including significant numbers of Bolsonaro supporters who refused to accept the election results and camped in protest tent cities for weeks in the capital, Lula, unlike Joe Biden, accepted the presidency without disruption. In addition, unlike Trump, Bolsonaro had actually authorized the transfer of power to the new president. He then headed for Florida before Lula’s inauguration, leaving his supporters without a leader in their ongoing protests. “We either live in a democracy or we don’t,” he told them. “And no one wants an adventure.”

Donald Trump, of course, did anything but leave town. He had already tweeted to his followers, “Big protest in D.C. on January 6th… Be there, will be wild!” On that day, he then inspired the attack by personally urging an armed mob assembled at Washington’s Ellipse Park to march on the Capitol and disrupt the vote meant to certify the election results. “You’ll never take back our country with weakness,” he told them. “You have to show strength and you have to be strong.”

Nearly two years later, the congressional January 6th report would, as the legal blog Just Security summarized it, conclude: “Without that speech, without that mob… the assault on the Capitol would not have happened.” Moreover, although the Brazilian rioters broke windows, destroyed computers, and ransacked art, and although reports suggested weapons had been stolen from the presidential palace during the attack, there were, as the Associated Press noted, “no immediate reports of deaths or injuries” amid the rampage. Quite the contrary, there was some degree of camaraderie between many of the police and the rioters.

In Washington, on the other hand, seven deaths would be associated with the assault on the Capitol, 140 police officers would be wounded, and several individuals were hospitalized. Meanwhile, the insurrectionists, including significant numbers of militia members and both retired and still serving U.S. military personnel, quite literally demanded the heads of politicians like Mike Pence and Nancy Pelosi. (Some of the protesters even constructed a gallows in front of the Capitol.) In Brazil there were no similar threats to elected officials and the buildings under attack were largely empty.

Calling in the Troops — or Not

The attempts to quell the attacks in both countries differed as well. At the outset, given the levels of violence, sufficient law enforcement was lacking in both countries, though in different ways, as the insurrectionists in each instance passed through police barricades with surprising ease. Stephen Sund, the chief of the U.S. Capitol Police, reported his horror at witnessing a “mob like nothing I have seen in my law enforcement career.” He watched his officers being “hit with pipes, wooden sticks, flag poles, and sprayed with mace and bear spray, all while trying to defend themselves against projectiles being directed at them.” Meanwhile, two pipe bombs were found in the vicinity of the riot, one each near Democratic National Committee headquarters and Republican National Committee headquarters. 

But within a short period of time, a major difference emerged. In Brazil, the leader was absent. Bolsonaro was out of touch and, though surprisingly few police were initially on the scene and those that were seemed sympathetic to the former president’s rioting defenders, when President Lula called for backup from his security forces, they arrived in significant numbers.

In the United States, President Trump didn’t go anywhere. He simply continued — as he does to this day — to contest the election results, while watching developments on TV. That was true despite calls for help from longtime allies in Congress, including House Minority Leader Kevin McCarthy who bitterly told the president that his followers were “trying to f—— kill” him. Trump, in fact, waited hours before telling the insurrectionists to go home, adding, “We love you. You’re very special.”

Chief Sund called for backup immediately but was rebuffed. The Capitol police, he later explained in a letter to Congressional leaders, “does not have the manpower, the training, or the capabilities to handle an armed insurrection involving thousands of individuals bent on violence and destruction at all costs.” He reached out and received help from the Secret Service, the D.C. Metropolitan Police Department, and others. But what he needed was the National Guard.

In fact, Sund had requested that the Guard be put on standby in the lead-up to January 6th. In a later interview, he told reporter Aaron Davis that he also had identified the need for the National Guard on January 3rd. On the day of the attack, he reported, he literally begged for them, but his pleas fell on deaf ears.

According to the rules, the chief does not have the power to request the Guard without the approval first of the Capitol Police Board, which took more than an hour to obtain, and then of the Pentagon whose first responders recommended against approving the request, objecting to the “visual of the National Guard standing in a line with the Capitol in the background.” Chief Sund continued to plead for help and eventually an embattled Vice President Mike Pence ordered the D.C. National Guard dispatched to the capitol. Once they arrived — at approximately 5:30 p.m. — it still took two hours to fully quell the violence.

The Aftermath

In Brazil, an aggressive strategy to identify leaders and followers began immediately.  Authorities detained 1,500 people within 24 hours of the attack while individuals who had aided the protest from inside were quickly suspended and placed under further investigation. Higher-ups who might have abetted the riots were removed as well. Brasilia Governor Ibaneis Rocha, a Bolsonaro ally, was suspended and his chief of security and the head of the police were arrested. Lula has pledged to continue to root out Bolsonaro allies from his security forces, while the former president is reportedly under investigation for any role he might have had in the uprising.

Some, including Tyler McBrien at the Lawfare blog, have ascribed the swiftness and efficiency of the response in Brazil to lessons learned from January 6th. The differences are certainly telling. In the United States, it took six weeks after the insurrection for the Capitol Police to reportedly suspend six officers (with pay) for their actions that day, while putting 29 more under investigation. As for the rioters, the Department of Justice has focused on those who breached the Capitol’s perimeter and the building itself, many of them armed with “deadly or dangerous weapons,” ranging from baseball bats to guns. Two years later,  at least 972 individuals have been charged with crimes related to the attack. Of those, 495 have reportedly pled guilty and six, including founder of the Oath Keepers militia Stewart Rhodes, have been found guilty of seditious conspiracy. At least 378 have received sentences and at least 55% received prison time. The longest sentence meted out so far is 10 years, though none of those convicted of seditious conspiracy has yet been sentenced.

As for the higher-ups who failed to defend the capitol adequately, the push for accountability has been meager at best. Sund resigned, as did at least two members of the Capitol Board. Other than that, there has been little to no responsibility taken for what happened.

Looking to identify the leaders of the insurrection and not just its foot soldiers, the Senate convened a select committee to investigate the events surrounding January 6th. Almost seven months later, on June 30, 2021, they went to work, hearing from more than 1,000 witnesses, and on December 22, 2022 (just before the Republicans were to take back the House of Representatives), finally issuing a report that focused primarily on the misdeeds of Donald Trump. In addition to calling for charges against him, the committee recommended criminal charges against his election lawyer John Eastman. But while Attorney General Merrick Garland has promised “justice without fear or favor,” no indictments have yet been announced for either the former president or any of his chief allies.

While such steps towards accountability remain crucial, another issue warrants attention as well: the period of the presidential transition, between election day on the second Tuesday in November and inauguration day, January 20th. That 10-week period is, we now know, fraught with possibilities for the abuse of power and the undermining of democratic norms.

And this is not the first time that the potential for disruption — or even disaster — has come to the fore.

Presidential Transitions, Then and Now

As it happens, the 2020 election was hardly the first time the results of a presidential contest had been in question. As early as 1800, Thomas Jefferson and Aaron Burr squared off for six days and 35 ballots in the House of Representatives before Jefferson was finally declared president. Or consider the “corrupt bargain” election of 1824 in which Andrew Jackson lost to John Quincy Adams in a stand-off decided in the House after neither of them won a majority of the electoral college votes. Or Abraham Lincoln’s election in 1860 after which, by inauguration day in 1861, seven states had seceded from the Union. And then there was the Samuel Tilden-Rutherford B. Hayes election of 1876 in which Tilden was one vote shy of a majority in the electoral college. That led to a transition period of intense fighting over voting violations. After the passage of the Electoral Commission Act, Republican Hayes, caving in on the post-Civil War Reconstruction program, garnered additional support from Democrats and became president.  More recently, of course, there was the 2000 election between George W. Bush and Al Gore in which a Florida recount delayed the results for several weeks.

During any presidential transition period, much has to happen. Money has to be transferred to the incoming team for equipment; offices need to be set up; and perhaps most important, nominations to top positions need to be made. The Presidential Transition Act of 1963, which governs “the orderly transfer of the executive power,” noted that “any disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people.” 

The 9/11 Commission underscored the dangers of a poorly executed transfer of power, suggesting that failure to be prepared for the attacks of September 11, 2001, was connected, at least in part, to a truncated transition period. By the time the Supreme Court finally intervened and stopped the Florida recount, making George Bush president on December 12th, that period had been reduced to 39 days, half the normal time, with damaging repercussions. The commission concluded that the delay had “hampered the new administration in identifying, recruiting, clearing, and obtaining Senate confirmation of key appointees,” thereby hindering National Security Council efforts to prevent those terrorists from attacking the following September.

In response to such concerns, in 2010 and again in 2019, Congress lengthened the time allotted for the transfer of information between administrations and put earlier deadlines on top government appointments. The fraught transition period after Joe Biden’s election, however, provided clear evidence that more was needed. On December 22, 2022, Congress passed the Presidential Transition Improvement Act which deals specifically, among other things, with the problems created by a contested election.

But no legislation is likely to deal adequately with what Donald Trump and his cadre of election deniers (and insurrectionists) tried to do on January 6, 2021. Whether or not that signals a new and more perilous future for the American system remains to be seen. One thing is clear: on that day, the United States failed to transfer power peacefully. While the new president was indeed finally certified, it was on a transition day of historically lethal violence.

Yes, had it not happened, it’s hard to imagine that events in Brazil would have occurred the way they did — such is the global effect of social media — but the Brazil comparison, for all its obvious similarities (and even the element of imitation), falls short. After all, despite those violent protestors, Brazil’s actual transfer of power did indeed occur peacefully in a way that this country’s didn’t — a reality that no one should sweep under the rug.

The United States came within a hair’s breadth of a successful coup attempt and the actual blocking of the lawful election of a president. Despite the active prosecutions of that day’s insurrectionists, despite whatever charges might sooner or later be leveled at Donald Trump and his accomplices, and despite legislation aimed at plugging the loopholes that led to the crisis, it’s important never to forget that a daunting historical threshold has been crossed, one we can’t afford to witness again.

Copyright 2023 Karen Greenberg

Via Tomdispatch.com

Ever since then, time and again, I’ve envisioned writing the story of its ultimate closure, its last days. Today, eyeing the moves made by the Biden administration, it seems reasonable to review the past record of that prison’s seemingly never-ending existence, the failure of three presidents to close it, and what if anything is new when it comes to one of the more striking scenes of ongoing injustice in American history.  

The Beginning

When, in January 2002, those first planes landed at Guantánamo (which we came to know as Gitmo), the hooded, shackled, goggled, and diapered prisoners in them were described by the Pentagon as “the worst of the worst.” In truth, however, most of them were neither top leaders of al-Qaeda nor, in many cases, even members of that terrorist group. Initially housed at Camp X-Ray in open-air cages without plumbing, dressed in those now-iconic orange jumpsuits, the detainees descended into a void, with little or no prison policies to guide their captors. When Brigadier General Michael Lehnert, the man in charge of the early detention operation, asked Washington for guidelines and regulations to run the prison camp, Pentagon officials assured him that they were still on the drawing board, but that adhering in principle to the “spirit of the Geneva Conventions” was, at least, acceptable.

Those first 100 days left General Lehnert and his officers trying to provide some modicum of decency in an altogether indecent situation. For example, Lehnert and those close to him allowed one detainee to make a call to his wife after the birth of their child. They visited others in their cells, talked with them, and tried to create conditions that allowed for some sort of religious worship, while forbidding interrogations by officials from a variety of U.S. government agencies without a staff member in the interrogation hut as well. Against the wishes of Secretary of Defense Donald Rumsfeld and the Pentagon, a lawyer working with the general even called in representatives of the International Committee of the Red Cross.

By the end of March 2002, the U.S. had installed prefab prisons at Guantánamo in which those detainees could be all too crudely housed and had brought in a new team of officers to oversee the operation while pulling Lehnert and his crew out. The new leadership included people reporting directly to Rumsfeld as they put in place a brutal regime whose legacy has lasted, in all too many ways, to this day.

Despite General Lehnert’s efforts, in the nearly 21 years since its inception, Guantánamo has successfully left the codes of American law, military law, and international law in the dust, as it has morality itself in a brazen willingness to implement policies of unspeakable cruelty. That includes both physical mistreatment and the limbo of allowing prisoners to exist in a state of indefinite detention. Most of its detainees were held without any charges whatsoever, a concept so contrary to American democracy and legality that it’s hard to fathom how such a thing could happen, no less how it’s lasted these 7,627 days.

Bush’s Prison

As the 35 prisoners still in Guantánamo illustrate, no president has yet found a way to close that prison completely. George W. Bush, who opened it, did eventually acknowledge that it would be best to shut it down. As he put it to a German television audience in May 2006, “I very much would like to end Guantánamo. I very much would like to get people to a court.”

He was, however, anything but decisive on the subject. As he told a White House press conference that June, “I’d like to close Guantánamo, but I also recognize that we’re holding some people that are darn dangerous, and that we better have a plan to deal with them in our courts. And the best way to handle — in my judgment, handle these types of people is through our military courts.” That month the Supreme Court invalidated the ad hoc military tribunals that had by then been formed at Gitmo and, in the fall of 2006, Congress passed the Military Commissions Act, formally creating the courts Bush had imagined.

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Pointing out that shuttering the prison was “not as easy a subject as some may think on the surface,” the president then began pursuing another approach — namely, releasing uncharged prisoners and returning them to their home countries or transferring them elsewhere. And his administration did, in the end, release about 540 of the 790 prisoners held there. Gitmo accepted its last prisoner in March 2008.

Meanwhile, a 2008 Supreme Court ruling granting detainees the right to challenge their detention by filing habeas corpus petitions in federal court opened a new path toward future freedom. Twenty-three of those detainee petitions were granted before Bush left office, but the prison, of course, remained open.    

Obama’s Well-Intentioned but Failed Efforts

Barack Obama initially signaled his desire to close Guantánamo on the campaign trail and then, in one of his first acts as president, issued an executive order calling for it to be shut down within a year. “If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities,” it read, “they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.” With new energy, the Obama administration plunged ahead on the two fronts Bush had halfheartedly pursued: establishing military commissions and transferring certain prisoners directly to their home countries or others willing to accept them.

On Obama’s watch, a reformed version of the Guantánamo tribunals was authorized by the passage of the 2009 Military Commissions Act, resolving five cases, all with guilty pleas. In addition, his administration edged toward closure by transferring nearly 200 more prisoners to willing countries in a vigorous effort over the final year and a half of his presidency.  Still, he encountered unanticipated opposition within Congress. Although the military commissions did start anew under Obama, so many years later, their trial of the five prisoners alleged to have been actual 9/11 co-conspirators has still not been scheduled.

In addition, under Obama, numerous habeas corpus petitions were filed in federal court, often falling victim to defeat in appellate courts. As Shayana Kadidal, the Center for Constitutional Rights’ senior managing attorney for Gitmo litigation, summed it up at Just Security: “By 2011, the then sharply conservative D.C. Circuit had rendered it more or less impossible for detainees to prevail on their habeas petitions.”

Obama’s team did seem to add a new possibility for aiding the closure process by transferring one detainee to federal court for trial on terrorism charges. In 2010, Ahmed Ghailani stood trial in New York City for participating in the bombings of two U.S. embassies in East Africa. He was found guilty and sentenced to life in prison on U.S. soil. But in the end, the trial proved fraught with problems, including the fact that the defendant was acquitted on 284 of 285 charges and so it would prove to be not just the first but the last such trial. In fact, in the 2011 National Defense Authorization Act, Congress included a ban on the transfer to the United States of any further Gitmo detainees for any reason whatsoever.

All told, though the Obama administration poured far more energy into the effort to close Gitmo than the Bush administration had, the president failed during his terms in office to do so. In his last year, Obama continued to push hard with the rallying cry, “Let’s go ahead and get this thing done!” He called for renewed federal trials on U.S. soil and prisoner incarceration in the United States, noting that Guantánamo was “contrary to our values” and “undermines our standing in the world” — not to mention the $450 million annual price tag for keeping it open.

He put the blame for failure squarely on the growing political divide in the country and openly worried about what it meant not to succeed. “I don’t want to pass this problem on to the next President, whoever it is,” he said. And, of course, we know just who he was.

Trump’s “Bad Dudes”

Not surprisingly, passing Guantánamo on to Donald Trump fulfilled whatever misgivings he had. Unlike Presidents Bush and Obama, Trump displayed no interest whatsoever in closing it. His instinct was to reaffirm its standing as a legal black hole. On the campaign trail in 2016, in fact, he swore that “we’re gonna load it up with some bad dudes, believe me, we’re gonna load it up.” On taking office, he almost instantly signed an executive order to keep Gitmo open. 

Still, no new detainees were actually added during his term in office. In 2020, he even suggested it should house people infected with Covid, but as it turned out, expanding its activities was as elusive a goal for Trump as closing it had been for his predecessors.

While his threats of adding inmates amounted to naught, his presidency basically put that prison camp on pause. He even stopped the process of transferring five detainees cleared for release by the Obama team. Only one prisoner, Ahmed Muhammad Haza al-Darbi, who had pleaded guilty in 2014 in the military commissions, was released during Trump’s time in office. Meanwhile, the military commissions remained essentially stalled on his watch and Congress continued the ban on moving any of the detainees to the U.S.

Biden’s Gitmo

When Joe Biden entered office, 40 prisoners remained at Guantánamo Bay. In his first weeks, his aides called for a formal review of their cases and his spokesperson Jen Psaki announced the administration’s intention to close the prison camp before he left office. Having learned from Obama’s mistakes, however, Biden made no sweeping public promises.

His administration nonetheless put renewed energy into both transfers and trials. The military commissions have indeed ramped up in recent months. Pretrial hearings have recently been held in the four pending military tribunal cases. In addition, plea deals that would take the death penalty off the table are reportedly being negotiated for the five 9/11 defendants.

Three of the five detainees cleared for release by the Obama administration have finally been transferred to other countries, while all but three of the 27 prisoners not cleared when Biden took office have been greenlighted to go home or to a third country. In doing so, several previously blocked thresholds were crossed. As of early 2021, when the government cleared detainee Guled Hassan Duran, it signaled that, for the first time, there was a willingness to release even those who had been subjected to torture while held at CIA “black sites” in the early years after 9/11. The point was made even more strongly three months later when Mohammed al Qahtani, who experienced some of the worst treatment at American hands, was also finally released.

Meanwhile, in September 2022, President Biden appointed former State Department coordinator for counterterrorism and former ambassador to Kosovo, Tina Kaidanow, to oversee the transfer of prisoners cleared for release. While her position doesn’t replicate the formidable office of the Special Envoy for Guantánamo Closure that Obama established and Trump nixed, it is a promising move. The job of arranging each prisoner transfer, assuring the security of the detainee, and assessing that the release will not pose a danger to the United States is challenging but achievable, as prior releases have demonstrated. All told, recidivism rates for Guantánamo detainees, as reported by the Director of National Intelligence, have been 18.5%, though only 7.1% for those released under Obama.

In the End…?

The last question, these 7,627 nightmarish days later, might be this: Are there any options for the final Gitmo prisoners? In 2017, military defense lawyers Jay Connell and Alka Pradhan, joined by researcher Margaux Lander, pointed out that, under international law, victims of “torture, and cruel, inhuman and degrading treatment” have the right to full rehabilitation. In addition to seeking the removal of the death penalty in their cases, the 9/11 defendants at Gitmo have reportedly asked for access to a torture rehabilitation program.

Pradhan, who represents 9/11 defendant Ammar al Baluchi has summed the situation up well:

“The United States has utterly failed to give these men either a fair trial or medical treatment for their torture in violation of their legal obligations. Most of the evidence in the 9/11 case is torture-derived, and the men are deteriorating quickly from the brain and other injuries inflicted by U.S. torture nearly 20 years ago. The Department of Defense has confirmed that they don’t currently have the ability to provide complex medical care at Guantanamo, so the most ethical solution is to transfer the men to locations where they can obtain the care they require.”

In fact, after all these years in prison, releasing those who might otherwise still stand trial and putting them in rehabilitation centers might indeed be a good idea.

There are many ways to address a wrong. Arguably, the greater its magnitude, the more leeway should be given for subsequent actions. As the Biden administration has taken steps towards closing Gitmo, perhaps the gesture of sending the defendants in the military commissions to rehabilitation programs is a good one. 

For years, General Lehnert has told Congress, media outlets, and anyone who would listen that it remains imperative, however difficult, to finally shut the prison down. As he has written,“Closing Guantánamo is about reestablishing who we are as a nation.” It might not quite accomplish that, but it would certainly be a formidable step in that direction. After all, its legacy of torture, indefinite detention without charges or trials, and the reckless disregard for the rule of law will no doubt haunt us for years.

There is no way to fathom the harm caused by the torture, cruel treatment, legal limbo, injustice, and dehumanization that has become the definition of Guantánamo. But for the first time in all these years, its actual closure might realistically be on the horizon. One can always hope, right?

Copyright 2022 Karen Greenberg

Via Tomdispatch.com