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Tomgram: Karen Greenberg, The Forever Prisoners of Guantanamo

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This article originally appeared at TomDispatch.com. To receive TomDispatch in your inbox three times a week, click here.

Here's a little fact of our age: Rear Admiral Peter Clark is the 16th commander of America's notorious prison complex at Guanta'namo Bay, Cuba, opened in January 2002, and it seems he won't be the last. As the New York Times recently reported, the Trump administration is already readying a draft executive order that would direct the Pentagon to use that prison to "detain suspected members of 'Al Qaeda, the Taliban, and associated forces, including individuals and networks associated with the Islamic State.'" One such terror suspect, Abu Khaybar, held in Yemen by "another country" and long associated with al-Qaeda, is supposedly being eyed as the possible first new Guanta'namo detainee since the end of the Bush era.

Consider all of this a guarantee that what might be the world's most notorious prison will undoubtedly have a 17th, 18th, and 19th commander -- brought to you by the job-creating administration of Donald J. Trump who, during the 2016 election campaign, swore that he would keep that prison open and "load it up with some bad dudes." In addition, instead of spending what he claimed was $40 million a month sprucing up Gitmo, he "guaranteed" that he would do it for "peanuts." Post-election, according to no less of an authority than White House Press Secretary Sean Spicer, the president still "believes that Guanta'namo Bay does serve a very, very healthy purpose in our national security." Of course, the Islamic State agrees with both of them that it would be "healthy" indeed -- for ISIS, that is, which has already staged horrific videoed torture and killing scenes, while mockingly dressing its prisoners in the orange jumpsuits Guanta'namo made (in)famous.

All I can say is thank god that, despite promising on day one of his presidency to shut down Guanta'namo within a year, President Obama didn't issue an executive order in his last months in office to do so (as he certainly could have). It would have set a terrible example of executive overreach for President Trump and might have led him, despite endless Republican complaints about such overreach during the Obama era, to resort to rule by executive order himself. (Sad!) So all looks upbeat indeed when it comes to the future of Guanta'namo-style extra-legality and to that crown jewel in what was once a Bermuda Triangle of offshore injustice, even if we don't yet know whether the Trump administration will send U.S. citizens there. Unfortunately, not all Americans have experienced the benefits of Gitmo equally. TomDispatch regular Karen Greenberg, director of the Center on National Security at Fordham Law School and an expert on Guanta'namo, who has written on that subject for this website for more than a decade, is certainly one of those. She tells her sad story today. Tom

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Guanta'namo's Last 100 Days
The Story That Never Was
By Karen J. Greenberg

In the spring of 2016, I asked a student of mine to do me a favor and figure out which day would be the 100th before Barack Obama's presidency ended. October 12th, he reported back, and then asked me the obvious question: Why in the world did I want to know?

The answer was simple. Years before I had written a book about Guanta'namo's first 100 days and I was looking forward to writing an essay highlighting that detention camp's last 100 days. I had been waiting for this moment almost eight years, since on the first day of his presidency Obama signed an executive order to close that already infamous offshore prison within a year.

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I knew exactly what I would write. The piece would narrate the unraveling of that infamous detention facility, detail by detail, like a film running in reverse. I would have the chance to describe how the last detainees were marched onto planes (though not, as when they arrived, shackled to the floor, diapered, and wearing sensory-deprivation goggles as well). I would mention the dismantling of the kitchen, the emptying of the garrison, and the halting of all activities.

Fifteen years after it was first opened by the Bush administration as a crucial site in its Global War on Terror, I would get to learn the parting thoughts of both the last U.S. military personnel stationed there and the final detainees, just as I had once recorded the initial impressions of the first detainees and their captors when Gitmo opened in January 2002. I would be able to dramatize the inevitable interagency dialogues about security and safety, post-Guanta'namo, and about preparing some of those detainees for American prison life. Though it had long been a distant dream, I was looking forward with particular relish to writing about the gates slamming shut on that symbol of the way the Bush administration had sent injustice offshore and about the re-opening of the federal courts to Guanta'namo detainees, including some of those involved in the planning of the 9/11 attacks.

I was eager to describe the sighs of relief of those who had fought against the very existence of that prison and what it had been like, year after year, to continue what had long seemed to many of them like a losing battle. I could almost envision the relief on the worn faces of the defense attorneys and psychologists who had come to know firsthand the torment of the Gitmo prisoners, some still in their teens, who had been consigned to that state of endless limbo, many of them tortured psychologically and sometimes physically. I also looked forward -- and call me the dreamiest of optimists here -- to collecting statements of remorse from government and military types who had at one time or another shared responsibility for the Gitmo enterprise.

Unlike me, most critics and activist opponents of that detention facility had long ago given up hope that Obama would ever follow through on his initial executive order. Across the years, the reasons for doing so were manifold. Some turned pessimistic in the spring of 2009 when, five months after he took the oath of office, the president let it be known that indefinite detention -- the holding of individuals without either charges or plans to try or release them -- would remain a key aspect of Washington's policy going forward. A collective cry of outrage came from the ACLU, the Center for Constitutional Rights, and other organizations that had long focused on the legal, moral, and political black hole of Gitmo. From there, it seemed like an endless slide to the idea that even closing Guanta'namo wouldn't finish off indefinite detention. (The heart and soul of Guanta'namo, in other words, would simply be transposed to prisons in the U.S.)

Some lost hope over the years as the process of challenging the detention of Gitmo's prisoners in federal court -- known as filing a writ of habeas corpus -- increasingly proved a dead-end. After a couple of years in which detainees were granted release by the lower court approximately 75% of the time, reversals and denials began to predominate, bringing the habeas process to a virtual halt in 2011, a sorry situation Brian Foster, a prominent habeas lawyer from Covington and Burling LLP, has laid out clearly.

Then, in the 2011 National Defense Authorization Act (NDAA), Congress instituted a ban on the transfer of any Gitmo detainee to the United States for any purpose whatsoever -- trial, further detention, or release. If federal courts wouldn't deal with them and federal prisons couldn't hold them, then how in the world could Guanta'namo ever close?

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Still others lost hope as, in the Obama years, newly constituted military commissions that were meant to try the prisoners at Guanta'namo became a collective fool's errand. Since 2002, more prisoners (nine) have died there than have been successfully tried by those military commissions (eight). And of the eight convictions they got, two by trial and six by plea bargain, four have already been thrown out in whole or in part.

In other words, those commissions, the Obama administration's answer to detention without trial, never worked. Pre-trial hearings, underway for years, in the cases still pending are expected to continue well into the 16th year since the attacks for which the defendants are to be tried took place. The chief prosecutor for the five 9/11 defendants who were brought to Gitmo in 2006 and charged in 2012, has recently -- without the slightest sense of irony or remorse -- proposed that their trials begin in March 2018. With appeals, they might conceivably conclude in the third decade of this century.

The Last 100 Days That Weren't

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Tom Engelhardt, who runs the Nation Institute's Tomdispatch.com ("a regular antidote to the mainstream media"), is the co-founder of the American Empire Project and, most recently, the author of Mission Unaccomplished: Tomdispatch (more...)
 

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