The U.S. flag at Guantánamo.

By Andy Worthington

Eleven years after the terrible terrorist attacks on September 11, 2001, 167 men are still held in the "war on terror" prison at Guantánamo Bay, Cuba, following the death of one prisoner on the eve of the anniversary, who has not yet been identified. They include five men allegedly responsible for the attacks, who still await justice, and the story of these men -- who include Khalid Sheikh Mohammed, the supposed mastermind of 9/11 -- is a reminder of why it is important to adhere to existing laws and treaties.

Had they been arrested and put on trial in federal court, their alleged victims would no longer be waiting for justice to be done, as their trials would have concluded many long years ago. However, on capture they were spirited away to secret prisons run by the CIA, where they were subjected to torture, approved at the highest levels of the Bush administration, and, since arriving at Guantánamo in September 2006, they have been allowed almost no opportunity to speak publicly about their experiences -- a situation driven solely by the desire to suppress all mention of their torture by U.S. forces.

Similarly disastrous policies were enacted at Guantánamo. Although the majority of the 779 men held in total since the prison opened were not held in "black sites" prior to their arrival at Guantánamo, all were abused in Afghanistan, where they were processed after their capture -- mostly in Pakistan or Afghanistan -- and many were then abused in Guantánamo, where torture techniques including prolonged isolation and sleep deprivation were introduced, and were approved by George W. Bush's first defense secretary, Donald Rumsfeld.

That regime of systematic abuse has, thankfully, come to an end -- largely as a result of two Supreme Court rulings. The first, Rasul v. Bush, was in June 2004, granting habeas corpus rights to the prisoners, which not only allowed them to meet lawyers for the first time, but also brought to an end the secrecy that had shrouded Guantánamo since it opened, and that was needed for abuse to take place with impunity. The second, Hamdan v. Rumsfeld, was in June 2006, when the court ruled that the protections of Common Article 3 of the Geneva Conventions -- which prohibit torture and "outrages upon personal dignity, in particular humiliating and degrading treatment" -- applied to all prisoners seized in wartime. This brought to an end the disgraceful situation whereby, since February 7, 2002, when President Bush issued a memorandum declaring that the Geneva Conventions did not apply in the "war on terror," the U.S. government had pretended that prisoners at Guantánamo and elsewhere in the "war on terror" had no rights.

Nevertheless, creating a more humane environment is one thing, but actually releasing the men held or bringing them to justice is another, and on this count those still held in Guantánamo have been failed by all three branches of the U.S. government.

Although the Supreme Court reiterated in June 2008, in Boumediene v. Bush, that the men had habeas corpus rights, which led to dozens of victories in court, as District Court judges ruled that the government had failed to demonstrate that their supposed evidence was credible, the appeals court judges -- in the Circuit Court in Washington D.C. -- fought back, redefining the standards of evidence required to hold prisoners, and obliging the lower court judges to give the government's evidence the presumption of accuracy. In the two years and two months since the D.C. Circuit Court stepped in, not a single prisoner has had their habeas petition granted, and in June this year the Supreme Court refused to become involved, effectively killing off habeas corpus as a remedy for the men still held.

In Congress, lawmakers have also conspired to prevent the release of prisoners, imposing onerous restrictions on the President, even though his interagency Guantánamo Review Task Force, which reviewed the prisoners' cases in 2009, concluded, at least as long ago as January 2010, when its final report was issued (PDF), that 87 of the 167 men still held should be released.

In addition, President Obama himself has refused to fight for these 87 men, most noticeably by issuing a moratorium preventing the release of any cleared Yemenis in January 2010. This followed a frankly hysterical response to the discovery that the failed underwear bomber, Umar Farouk Abdulmutallab, arrested after trying and failing to detonate a bomb in his underwear on a flight into Detroit on Christmas Day 2009, had been recruited in Yemen.

58 of the 87 cleared prisoners are from Yemen, and, as we revealed here in June, in our exclusive report, Guantánamo Scandal: The 40 Prisoners Still Held But Cleared for Release At Least Five Years Ago, dozens of those men were first cleared between five and eight years ago, by military review boards under the Bush administration, but were not subsequently released. Now President Obama has repeated these decisions, approving the men for release but not releasing them. For up to eight years, therefore, all notions of justice and fairness have been mocked when it comes to the Yemenis, who cannot secure their release by any means, and who would be forgiven for wondering why their captors are crueller than the kind of totalitarian state that openly practices arbitrary detention. Totalitarian states wouldn't dream of emulating America, which, since 9/11, pretends that it has processes in place to decide when prisoners seized in its "war on terror" do not constitute a threat, and no longer have any intelligence value, and should be freed, but then refuses to honor the decisions made as a result of those processes.

The 87 men still held include men of other nationalities who cannot be returned home safely -- some Syrians, for example, and three Uighurs (Muslims from China's Xinjiang province), who legitimately fear persecution by the Chinese government. These men had their habeas corpus petitions granted in October 2008, and an argument can be made that the U.S. ought to take them as no other country has been found that is prepared to offer them a new home. The 87 cleared men also include a number of Algerians, who regard it as unsafe to be repatriated, even though the U.S. government does not appear to agree, except in the case of one man, Ahmed Belbacha, who was tried and convicted in his absence in what looked to be a kangaroo court. For more information, see the stories of two of these men -- Djamel Ameziane and Nabil Hadjarab.

Also cleared but mysteriously held is Shaker Aamer, the last British resident in the prison, whose story has been discussed here in the articles, 10 Years in Guantánamo: British Resident Shaker Aamer, Cleared for Release But Still Held and "I Affirm Our Right to Life": Shaker Aamer, the Last British Resident in Guantánamo, Explains His Peaceful Protest and Hunger Strike. Petitions calling for his release can be found here (for British citizens and residents) and here (for anyone anywhere in the world).

While the release of these 87 men remains of enormous significance to anyone concerned with justice and human rights -- even though it is being shamefully ignored on the Presidential campaign trail -- they are not the only victims of an ongoing injustice. When the Guantánamo Review Task Force issued its final report in January 2010, it also recommended that 36 men should be tried, and 48 other held indefinitely without charge or trial, on the basis that they were too dangerous to release, even though insufficient evidence existed to put them on trial.

For the 36, justice has slowed to a crawl, as just eleven men have been tried or put forward for trials since Obama came to power, and for the other 48 men, justice was never an option, as the President decided that, in their case, continuing to hold them without charge or trial was appropriate, given their alleged dangerousness.

Trusting information about the prisoners which was compiled by the Bush administration, when U.S. personnel tortured, abused and bribed prisoners to tell lies about themselves and others is a dangerous policy for the Obama administration to have embraced, as there are serious doubts about the alleged significance of many of the 48.

As this campaign continues, I hope to cover more of these stories in detail, but for now those who support the closure of Guantánamo are encouraged to look at just a few examples of the 48 -- the cases of Fayiz al-Kandari and Fawzi al-Odah, the last two Kuwaitis in the prison, for example, which we covered in an article six months ago, entitled, Justice Denied: The Stories of Fawzi Al-Odah and Fayiz Al-Kandari, the Last Two Kuwaitis in Guantánamo. The case against both men is essentially non-existent, based on innuendo and unsubstantiated allegations from a variety of untrustworthy sources, and we can confidently assert that similarly empty allegations plague the cases of other men consigned to the category of the 48 men to be held indefinitely without charge or trial. When President Obama issued the executive order authorizing their detention 18 months ago, he promised that there would be periodic reviews of their cases, and we would like to take this opportunity to encourage him to let the public know if any of these planned reviews have actually taken place, as we have heard nothing more about them.

Finally, for now, we would like to add our voices to those of the Egyptian government representatives who last month called for the release of Tariq al-Sawah, the last Egyptian in Guantánamo. An instructor at a training camp in Afghanistan, al-Sawah is no innocent, but he has cooperated so extensively with the U.S. authorities that his ongoing detention makes no sense, as it serves only as an example of why cooperating with the U.S. authorities is pointless.

In March 2010, the Washington Post explained that al-Sawah, who is 54 years old, and another prisoner, Mohamedou Ould Slahi, a Mauritanian, had "become two of the most significant informants ever to be held at Guantánamo," and were "housed in a little fenced-in compound at the military prison, where they live[d] a life of relative privilege -- gardening, writing and painting -- separated from other detainees in a cocoon designed to reward and protect." Despite their cooperation, the authorities refused to release either man, sending a dangerously counter-productive message to any would-be informants. As W. Patrick Lang, a retired senior military intelligence officer, told the Post, "I don't see why they aren't given asylum. If we don't do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I'd want it known we protected them. It's good advertising."

In Slahi's case, despite having his habeas petition granted, the D.C. Circuit Court intervened to dismiss that ruling, but in al-Sawah's case no such obstacle exists. Back in 2010, returning him to Egypt would have been dangerous, but that is clearly not the case now that the dictator Hosni Mubarak is gone, and Mohammed Morsi is President. Al-Sawah, like the Kuwaitis, the Yemenis, the Uighurs, the Algerians, Shaker Aamer and others, should be released immediately-- in the U.S. if no other safe place is available -- to wipe away some of the guilt and shame that still clings to America as a result of the Bush administration's brutal and misguided "war on terror," and the Obama administration's feeble and failed attempts to bring those injustices to an end.