Human rights groups are hailing reports that
President-elect Barack Obama plans to issue an executive order on his first
full day in office directing the closing of the Guantánamo Bay detention
camp in Cuba. But they are urging him to provide details on when and how it
will be done and what will happen to those now imprisoned there.
In a teleconference Tuesday with reporters, Caroline Frederickson, the chief
legislative representative of the American Civil Liberties Union (ACLU), said
closing Gitmo would mean little if detainees were simply moved to some other
location. She also said she needed reassurance that the Obama administration
would not propose a system of "preventive detention."
"It is not enough to simply close Guantánamo or even to suspend the military
commission trials currently taking place there," she said. She called
on Congress to repeal the Military Commissions Act of 2006, which gave the
president authority to detain people, including U.S. citizens, indefinitely
without charges or trials.
Deborah Colson of the Law and Security Program of the legal advocacy group
Human Rights First (HRF) told IPS that closing Guantánamo will "show the
world we are serious about our values." But, she added, it "will
require embracing time-tested procedures for criminal prosecution of suspected
terrorists in our federal courts."
Closing Guantánamo is unlikely to be completed quickly. One official of the
Obama transition team reportedly said it would take several months to transfer
some of the remaining 248 prisoners to other countries, decide how to try suspects
and deal with the many other legal challenges posed by closing the camp. However,
transition officials have said Obama is committed to ordering an immediate
suspension of the George W. Bush administration's military commissions system
for trying detainees.
In addition, the incoming administration has reportedly rejected a proposal
to seek a new law authorizing indefinite detention inside the United States.
The Bush administration had insisted that such a measure was necessary to close
the Guantánamo camp and bring some of the detainees to the U.S.
Meanwhile, the fate of a number of Gitmo detainees continues to play out in
the courts. On Tuesday, the ACLU filed a petition for habeas corpus in federal
court in Washington, challenging the detention of Mohammed Jawad, who has been
held at Guantánamo for more than six years.
Jawad, now about 23 years old, was captured at the age of 16 or 17 and is
one of two Guantánamo prisoners the U.S. is prosecuting for acts allegedly
committed when they were juveniles. He is accused of throwing a hand grenade
at two U.S. service members and their interpreter in Afghanistan.
"It would be a miscarriage of justice for President-elect Obama to continue
Mr. Jawad's unlawful detention in Guantánamo, particularly considering
that Mr. Jawad was captured as a teenager and detained based on alleged confessions
obtained through torture," said Hina Shamsi, an ACLU attorney.
"The Bush administration compounded this injustice by using torture-derived
evidence to prosecute Mr. Jawad for war crimes in the unconstitutional military
commissions. The government's continued detention and prosecution of Mr. Jawad
violates America's values and the Constitution, as well as this country's binding
obligations under the Geneva Conventions and human rights law," she said.
In September, the military's prosecutor resigned from the military commissions
because he did not believe he could ethically proceed with the case. He told
the court there was "no credible evidence or legal basis" to justify
Jawad's detention and prosecution, and that the commission system's flaws make
it impossible for anyone "to harbor the remotest hope that justice is
an achievable goal."
A month later, Army judge Col. Stephen Henley held that evidence collected
while Jawad was in U.S. custody could not be admitted in his trial because
it had been obtained under duress. Among various forms of abusive treatment,
Jawad was a victim of the military's so-called "frequent flyer" program,
in which detainees at Guantánamo were subjected to sleep deprivation
for extended periods of time.
In May 2004, a few months after Jawad tried to commit suicide in his cell,
prison officials deprived him of sleep for two weeks by moving him 112 times
in 14 days after having been ordered by their commanding general to discontinue
The government told the judge that Jawad's alleged confessions were the centerpiece
of its case against him. "The fact that the government persists in trying
to use evidence obtained through torture says everything you need to know about
the integrity of its case," said U.S. Air Force Major David J. R. Frakt,
who represents Jawad.
The Bush administration is appealing the Guantánamo military judge's
decision to throw out the "tainted" evidence.
In a separate case, the trial of another "child soldier," Canadian
citizen Omar Ahmed Khadr, is scheduled to begin Jan. 26. Khadr was captured
by U.S. forces when he was 15, following a four-hour firefight with militants
in a village in Afghanistan. He has spent six years in Guantánamo charged with
war crimes and providing support to terrorism after allegedly throwing a grenade
that killed a U.S. soldier.
But in February of 2008, the Pentagon accidentally released documents that
revealed that while Khadr was present during the firefight, there was no evidence
that he had thrown the grenade. In fact, military officials had originally
reported that another militant had thrown the grenade just before being killed.
HRF's Deborah Colson told IPS that Obama's plan to close Gitmo will be further
complicated if he "does not make an immediate decision to suspend all
military commission proceedings, including the trial of Omar Khadr." Among
the many complications surrounding the closing of Guantánamo is the question
of what to do with detainees the U.S. government has cleared for release.
In December 2008, the government attempted to halt the cases of approximately
20 detainees the Defense Department had cleared for transfer out of Guantánamo.
A few weeks later, a federal court rejected the government's action. The ruling,
from Judge Thomas Hogan of the United States District Court for the District
of Columbia, meant that lawyers for the detainees could go forward with attempting
to seek their release from detention.
As recognized by the Supreme Court and by District Court Judge Ricardo Urbina
in the case involving 17 Chinese Muslims known as Uighurs remaining
at Guantánamo, a core facet of the fundamental right of habeas is the
ability of a federal court to order release in cases of unlawful detention.
Judge Urbina ruled the Uighurs should be released from Guantánamo and admitted
into the U.S. The government is appealing that decision.
"An administrative order that says that they are free to go is not relief
after seven years of imprisonment," says Emi MacLean, an attorney with
the Center for Constitutional Rights. "These men need to be released from
prison, and this relief is long overdue."
There are approximately 50-60 detainees at Guantánamo who cannot be
sent to their home countries for fear of torture or persecution or because
of statelessness. These include the 17 Uighurs from China as well as men from
Azerbaijan, Algeria, Libya, Palestine, Russia, Syria, Tajikistan, Tunisia,
(Inter Press Service)