Witness Against Torture / Shutdown Guantánamo Bay Silent March departing from the White House in the 1600 block of Pennsylvania Avenue in Washington, DC, on January 7, 2012. (Photo: Elvert Barnes)

Nearly 17 years after 9/11 and one year into Donald Trump’s presidency, dozens of detainees remain held in the United States’ penal colony at Guantánamo Bay, Cuba. Obama’s failure to close the US prison at Guantánamo and hold torturers accountable has made it easier for Trump to openly embrace torture and keep the facility open. Now, a year into the Trump administration, the Guantánamo military commissions system remains a kangaroo court and the US government maintains an abusive system of indefinite detention while waging perpetual war. These policies are more normalized than they’ve been before.

Consistent with his campaign promise, President Trump has kept Guantánamo open and pledged to keep it that way. In a signing statement to the 2018 National Defense Authorization Act, President Trump stated, “I fully intend to keep open that detention facility and to use it for detention operations.” But in the same statement, Trump — like Obama — claims the executive power to release detainees despite congressional objections. However, Trump has not released any Guantánamo detainees.

President Trump has kept Guantánamo open and pledged to keep it that way.

As of this writing, 41 detainees are currently held in Guantánamo. Of those, 26 are held in indefinite detention without charge or trial. Just five are cleared for release, and seven have been charged in the military commissions system. Only three of the remaining 41 detainees have been convicted. The indefinite detainees are held because the US government believes that they are too potentially dangerous to release but too difficult to prosecute in a civilian court due to inadmissible or torture-obtained evidence. However, it is rare that released Guantánamo detainees engage in terrorist or militant activity.

Six men are currently being tried in Guantánamo’s military commission system. They are Abd al-Rahim al-Nashiri, who is accused of masterminding the USS Cole bombing in 2000, and five people accused of plotting the 9/11 terrorist attacks: Khaled Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi and Mustafa al-Hawsawi.

For the most part, the Guantánamo’s day-to-day operations have not radically changed. US Navy Commander Walter Ruiz, defense attorney for al-Hawsawi, told Truthout, “As far as I’ve seen, it’s been business as usual at Guantánamo.” Soon after his inauguration, Trump floated the idea of reopening overseas CIA secret prisons in a draft executive order. However, the administration quickly abandoned the proposal.

Only three of the remaining 41 detainees have been convicted.

Perhaps the most noticeable change is the greater willingness of the prosecution (which represents the US government) to openly justify torture in court. Defense attorney Alka Pradhan, who serves on Ammar al-Baluchi’s defense team, told Truthout, “Ever since the [Trump] election, certain members of the prosecution have been much more open about — almost cheerleading — the torture issue.” The six defendants are among the 119 people detained, interrogated and tortured in CIA secret prisons. The CIA’s abuses included physical beatings, waterboarding, cramped confinement, stress positions and mock executions.

In a December 2016 pretrial hearing, Robert Swann, one of the prosecutors, praised CIA torturers: “… there were good men and women who were asked by the president of the United States to conduct a terribly difficult mission at a time when nearly 3,000 — well, when 3,000 men, women and children had been killed and that the possibility existed for further attacks on this nation.” The kicker came when he said, “Knowing what I know and what I have been subjected to over the last, what, 12 years now, and what I have seen: Despite what one might think, I think and I know that lives were saved, and I sleep comfortably because of the very people that counsel impugned.”

This statement stunned defense attorneys. Pradhan said the prosecution “had never done that before the election, whether under Bush or under Obama.”

Contrary to Swann’s comments, torture is ineffective at gleaning useful intelligence. Little useful intelligence was gained through torture during the Bush years, as the 2014 Senate report points out. Torture usually leads to inaccurate and useless information. If anything, it was useful for eliciting false confessions for political reasons, such as torture-induced faulty intelligence to justify the Iraq War.

The US “war on terror” has impacted 40 percent of the planet.

At least in its posture, the Obama administration distanced itself from the Bush torture program. In 2015, Obama passed a law that ostensibly banned torture. The law forbids torture by restricting US interrogation techniques to those listed in the Army Field Manual. However, torture is already illegal. The US Constitution, UN Convention Against Torture, international law and domestic law already forbid torture. In addition, further nullifying Swann’s comments, national security is not a legitimate reason to use torture. The UN Convention Against Torture states, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” The United States simply refused to obey those laws during the Bush years. The Obama-era law just reaffirmed the obvious.

Moreover, the Obama anti-torture law did not fully ban torture. The Army Field Manual still allows for some forms of torture, namely solitary confinement and sleep deprivation.

Additionally, the Obama administration maintained the United States’ practice of indefinite detention at Guantánamo. Along with torture, indefinite detention is one of the abuses that made Guantánamo infamous. It violates international human rights law, such as the International Covenant on Civil and Political Rights. Moreover, inadmissible evidence is not a legitimate reason to detain people indefinitely. As journalist and human rights expert Daphne Eviatar explained in a 2014 Reuters article, “If the only evidence against these men was derived from torture, then that evidence should be inadmissible — in part because it’s not reliable. But then, it’s not a reliable basis upon which to detain them indefinitely either.”

Guantánamo and the Perpetual War

The US government justifies its indefinite detention powers by turning to the 2001 Authorization for Use of Military Force (AUMF), which allows the president to use force against al-Qaeda and other individuals, nations and organizations responsible for the 9/11 terrorist attacks. Under Obama, the AUMF was stretched to cover not just al-Qaeda and the Taliban, but also “associated forces,” which are al-Qaeda’s loosely-affiliated co-belligerents. This would include groups like the militant al-Shabaab in Somalia. It has also been stretched to cover the Islamic State of Iraq and Syria (ISIS), even though that group emerged after 9/11 and as a result of the 2003-2011 Iraq War.

When it comes to Guantánamo, Trump is largely picking up where Obama left off. Obama’s plan to “close Guantánamo” was more about moving than closing.

This undermines the basic principles of international law because terrorist groups like al-Qaeda and a nebulous term like “associated forces” that encompasses various militant groups under one vague umbrella do not constitute legitimate “parties” to an armed conflict. International law does not permit wars against such amorphous enemies, but that has not stopped the US from conducting its endless war.

US presidents have used the 2001 AUMF as legal cover to wage perpetual war around the world in the name of fighting terrorism. According to Brown University’s Costs of War project, the US “war on terror” has impacted 76 countries around the world — 40 percent of the planet. Trump has exacerbated this war. For example, in 2017, the US launched 124 drone strikes in Yemen, which is nearly four times as many that were launched in 2016 under Obama.

The US government argues that it is at war with al-Qaeda and “associated forces” and, therefore, has the right to hold detainees until the end of that war. The Obama administration made this argument and so has Trump’s. Obama’s State Department, in response to an Inter-American Commission on Human Rights report criticizing Guantánamo, said the US is engaged “in an ongoing armed conflict with al-Qaida, the Taliban, and associated forces. As part of this conflict, the United States has captured and detained enemy belligerents, and is permitted under the law of war to hold them until the end of hostilities.” It also used the 2001 AUMF to support this policy. Secretary of State Rex Tillerson argued similarly at the Senate Foreign Relations Committee, “The 2001 AUMF provides statutory authority for ongoing U.S. military operations against al-Qaida, the Taliban, and associated forces, including against the Islamic State in Iraq and Syria, or ISIS” and that “provides a domestic legal basis for our detention operations at Guantanamo Bay.”

Defendants’ thoughts and memories of CIA torture remain classified as state secrets.

Efforts to repeal the 2001 AUMF in the House and Senate have failed. In fact, last October, Tillerson and Defense Secretary Jim Mattis told the Senate Foreign Relations Committee that there should be no geographic or time constraints on the AUMF. Mattis stated, “We cannot put a firm timeline on conflict against an adaptive enemy who could hope that we haven’t the will to fight as long as necessary.” This means Guantánamo detainees are essentially prisoners of war in an endless war.

Thus, when it comes to Guantánamo, Trump is largely picking up where Obama left off. Obama’s plan to “close Guantánamo” was more about moving than closing. The Obama administration always supported indefinite detention. In May 2009, a few months after his inauguration, then-President Obama said his administration would continue to detain some Guantánamo detainees indefinitely without charge or trial. However, Obama wanted to move those detainees from Guantánamo to a prison on US soil. Because Congress forbade the transfer of Guantánamo detainees to US soil, Obama’s transfer plan was never realized.

Military Commissions: The Kangaroo Court Persists

Guantánamo also has a separate court system — the military commissions. The Bush administration established the military commissions system in 2006 to prosecute Guantánamo detainees for terrorism-related charges. The judge, prosecution and defense are composed of military officers, while the defense teams also have civilian defense lawyers. Unlike in civilian courts, evidence produced through coercion is allowed in the military commissions.

One issue being challenged in the Guantánamo military commissions system is the court’s actual jurisdiction. The 2009 Military Commissions Act (MCA) gives the commission system jurisdiction over any “alien unprivileged enemy belligerent.” This means a non-US citizen who “(A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a part of al Qaeda at the time of the alleged offense under this chapter.”

While Guantánamo’s worst days are over, the inhumanity of prolonged detention continues.

Al-Hawsawi’s defense team challenged the military commission’s jurisdiction by arguing that al-Hawsawi and the other 9/11 defendants are not “unprivileged enemy belligerents.” In a motion filed last April, defense attorneys argued the term “alien unprivileged enemy belligerent” is defined in a way “that they cannot exist outside of ‘hostilities,'” i.e., an actual war. Because of the US Constitution and laws of war, such belligerents “could not be defined to exist outside of an armed conflict, even if Congress wished to do so.” Thus, under the MCA’s definition, an “alien unprivileged enemy belligerent” can only exist in a time of war.

The MCA’s definition of “unprivileged enemy belligerent” requires the existence of an official war between the United States and al-Qaeda, which was clearly not the case when 9/11 happened. Moreover, the military commissions can try crimes “only if the offense is committed in the context of and associated with hostilities.” Since the United States was not at war with al-Qaeda in September 2001, defense lawyers argue that al-Hawsawi “cannot be an ‘unprivileged enemy belligerent’ under any part of this definition unless hostilities existed at the time of his alleged conduct.”

Another long-standing issue with the military commissions system, from Bush to Obama to now Trump, is government secrecy. All of the defendants were detained and tortured in CIA secret prisons. In a normal civilian court, information about torture would become public. However, the commissions system has a secrecy regime that prevents additional disclosure of details about the CIA torture program. In the latest pretrial hearing, prosecutors threatened defense attorneys with criminal charges if they independently questioned CIA agents and operatives, particularly those who witnessed the defendants’ torture. The defendants’ torture, defense lawyers argue, is mitigating evidence in the case.

In addition to prosecutors threatening defense attorneys with criminal charges, the commissions system also has a gag order that prohibits defense lawyers from speaking publicly about specific details of their clients’ experiences and torture in CIA detention. The 2014 Senate report on the CIA interrogation program poked a small hole in government secrecy by revealing additional details of the government’s use of torture. However, only 600 pages of the entire 6,000-page report were declassified for public release. Additional details of the program remain classified. Plus, the military commissions’ secrecy regime is still intact. For example, defendants’ thoughts and memories of CIA torture remain classified as state secrets. As Walter Ruiz explained in an email, “[A]ccording to the government’s interpretation even their [detainees’] own memories of the torture, the locations and the torturers are the property of the U.S. Government.”

Obama’s support for indefinite detention and perpetual war gave these policies a bipartisan stamp of approval that Bush could never achieve.

While normal civilian courts allow the accused to see the evidence being used against them, that’s not the case in the military commissions. Some of the prosecution’s evidence is classified information, such as CIA documents. The defendants cannot see the evidence, but their defense lawyers can since they have proper security clearance.

The 9/11 terrorist attacks were horrific crimes that killed thousands of innocent people. However, that does not morally or legally justify the US government using torture. Torture is illegal in all circumstances. The government cannot commit international crimes in response to another crime. This is what makes the military commissions system a kangaroo court. The US government established a separate court system in Guantánamo to prosecute people it tortured for terrorism, while concealing its own crimes.

Abuses Continue at Guantánamo

Ever since the Guantánamo Bay prison was established in 2002, torture has been de rigueur. Abuses at Guantánamo have ranged from physical beatings to rape and sexual harassment to psychological abuse and other forms of inhumane treatment. While Guantánamo’s worst days are over, the inhumanity of prolonged detention continues.

In late 2017, Nils Melzer, the United Nations special rapporteur on torture, expressed concern with the ongoing prolonged detention and abuse of Guantánamo detainees. Melzer specifically called attention to the mistreatment of Ammar al-Baluchi, one of the five alleged 9/11 plotters who was also tortured in CIA black sites. “In addition to the long-term effects of past torture, noise and vibrations are reportedly still being used against him, resulting in constant sleep deprivation and related physical and mental disorders, for which he allegedly does not receive adequate medical attention,” Melzer said in a statement in December 2017. In addition, Melzer criticized the US government for failing to hold torturers accountable for violating international law.

One detainee is currently on hunger-strike to protest his indefinite detention. That detainee is Khalid Qassim, who’s been detained in Guantánamo since 2002. Qassim wrote in a December op-ed in the Guardian that he’s fallen unconscious twice and feels “pain and weakness and dizziness.” He also says Guantánamo authorities “are refusing even to do basic medical checks. They last did a blood test on me about seven months ago.”

Now that President Trump has finished his first year in office, torture, indefinite detention and perpetual war are further solidified as key elements of US foreign policy. Obama’s support for indefinite detention and perpetual war gave these policies a bipartisan stamp of approval that Bush could never achieve. Despite the addition of President Trump’s cruel and buffoonish antics, on the Guantánamo front, his actions look familiar: He is maintaining the vicious US war machine just like his predecessors.

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