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Tomgram: Karen Greenberg, No Justice at Gitmo

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

With only nine months to go, in the fashion of modern presidents, Barack Obama is already planning his post-presidential library, museum, and foundation complex. Such institutions only seem to grow more opulent and imperial as the years and administrations pass. Obama's will reportedly leave the $300 million raised for George W. Bush's version of the same in the dust. The aim is to create at least an $800 million and possibly billion-dollar institution. With his post-Oval Office future already in view and his presidency nearly history, his "legacy" has clearly been on his mind of late. And when it comes to foreign policy, he definitely has some accomplishments to brag about. The two most obvious are the Iran nuclear deal and the opening to Cuba. In their own ways, both could prove game changers, breaking with venomous relations that lasted, in the case of Iran, for more than three and a half decades, and in the case of Cuba, for more than half a century.

You can already imagine the exhibits celebrating them at the Barack Obama Presidential Center to be built on the south side of Chicago. But it's hard not to wonder how that institution will handle the three major foreign policy promises the new president made in the distant days of 2008-2009. After all, he was, in part, swept into the presidency on a blunt promise to end George W. Bush's catastrophic war in Iraq. ("So when I am Commander-in-Chief, I will set a new goal on Day One: I will end this war.") Nine years later, he's once again taken this country into the Big Muddy of an Iraq War, either the third or fourth of them in the last five presidencies (depending on whether you count the Reagan administration support for Saddam Hussein's war with Iran in the 1980s). At this moment, having just dispatched B-52s, the classic Vietnam-era carpet-bombing plane of choice (Ted Cruz must be thrilled!) to Qatar as part of that war effort, and being on a mission-creep path ever deeper into what can only be called the Iraq quagmire, we're likely to be talking about a future museum exhibit from hell.

But it won't begin to match the special exhibit that will someday undoubtedly explore the president's heartfelt promise to work to severely curtail the American and global nuclear arsenals and put the planet on a path to -- a word that had never previously hovered anywhere near the Oval Office -- nuclear abolition. The president's disarmament ambitions were, in fact, significantly responsible for his 2009 Nobel Prize, an honor that almost uniquely preceded any accomplishments. Now, the same man is presiding over a planned three-decade, trillion-dollar renovation and modernization of that same arsenal, including the development of an initial generation of "smart" nukes, potentially first-use weapons. It's certainly been a unique path for our first outright anti-nuclear president to take and deserves a special place of (dis)honor at the future Obama center.

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Barring surprising developments in the coming months, however, no exhibit is likely to be more striking or convoluted than the one that will have to be dedicated to the "closing" of Guanta'namo, the notorious offshore, Bush-era prison camp. After all, as TomDispatch regular Karen Greenberg, author of Rogue Justice: The Making of the Security State, a striking soon-to-be-published anatomy of post-9/11 national security state mania, points out today, the closing of Guanta'namo within a year represented one of the president's first promises on entering the Oval Office. Unless somehow he succeeds in shutting Gitmo down over fierce Republican congressional opposition in these final months, it could prove the pièce de resistance of his future museum. Tom

Still in the Bush Embrace
What Really Stands in the Way of Closing Guanta'namo
By Karen J. Greenberg

Can you believe it? We're in the last year of the presidency of the man who, on his first day in the Oval Office, swore that he would close Guanta'namo, and yet it and everything it represents remains part of our all-American world. So many years later, you can still read news reports on the ongoing nightmares of that grim prison, ranging from detention without charge to hunger strikes and force feeding. Its name still echoes through the halls of Congress in bitter debate over what should or shouldn't be done with it. It remains a global symbol of the worst America has to offer.

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In case, despite the odds, it should be closed in this presidency, Donald Trump has already sworn to reopen it and "load it up with bad dudes," while Ted Cruz has warned against returning the naval base on which it's located to the Cubans. In short, that prison continues to haunt us like an evil spirit. While President Obama remains intent on closing it, he continues to make the most modest and belated headway in reducing its prisoner population, while a Republican Congress remains no less determined to keep it open. With nine months left until a new president is inaugurated, the question is: Can this country's signature War on Terror prison ever be closed?

The "Forever Detainees"

Here then is a little dismal history of a place most Americans would prefer not even to think about.

In January 2002, President George W. Bush opened the Guanta'namo Bay Detention facility. It was to hold, in Secretary of Defense Donald Rumsfeld's phrase, the "worst of the worst" in the War on Terror. Over time, its population rose to nearly 800 prisoners from 44 countries, some captured in Afghanistan, some traded for bounty payments by vindictive neighbors or hostile tribesmen, and some seized by CIA operatives in countries far from Taliban territory. The prison then held more al-Qaeda and Taliban followers than leaders, but many prisoners were neither: they had simply been in the wrong place at the wrong time. Recognizing this, within a few years the Bush administration sent more than 500 of the detainees back to their countries of origin or to other countries willing to accept them.

Then, in 2006, Bush made the lie of Guanta'namo a reality. His administration finally transferred "the worst of the worst" to the by-then-notorious island prison. Those 16 individuals included five who stood accused of participating in the 9/11 conspiracy, and others who were believed responsible for devastatingly lethal attacks against American targets in the 1990s, including the American Embassies in Kenya and Tanzania in 1998 and the USS Cole in the Yemeni port of Aden in 2000. All had been held for years in CIA custody in "black sites" in countries around the world. All had been subjected to "enhanced interrogation techniques," which was, of course, the administration's (and, in those years, the media's) euphemism for some of the oldest torture practices known.

That move would prove a game changer. Instead of Guanta'namo's population shrinking into irrelevance and dwindling into obscurity, as it should have, the prison for the first time became exactly what Rumsfeld had promised it would be: a place for the most notorious al-Qaeda "high value detainees" (HVDs) that the U.S. held. Khalid Sheikh Mohammed, the "mastermind" of 9/11, and four others allegedly involved in planning or carrying out the attacks on New York and Washington were among them.

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That same fall, Congress passed the Military Commissions Act aimed at assuring that Guanta'namo would be a site not only for offshore detention, but for offshore justice as well. At some future point, Mohammed and the others were to be tried by the U.S. military in Cuba, not in American civilian courts in the U.S. For the first time, the military commissions, like the high value detainees, seemed to give Guanta'namo definition (other than simply as a site of abuse, mistreatment, and injustice) and the possibility, in the context of the war on terror, of forward momentum. Those not released could now be tried. And yet by the end of the Bush years, only three prisoners, none of them HVDs, had been successfully convicted -- fewer, in other words, than the five who died in custody there in those years.

That should have been revealing enough for conclusions to be drawn. It turned out that even a secretive, militarized, legally compromised system of "justice" couldn't successfully bring to trial individuals involved in the crime that launched the new century, when the major evidence against them often came from brutal forms of torture. As a result, most of the Guanta'namo detainees had settled into a familiar state of limbo by the time Barack Obama took office in January 2009. At the time, 242 detainees were still in custody there and those military trials were going nowhere fast. The new president arrived on a white horse, full of promises about ending the stasis at Guanta'namo and ready to make sense of things. He promptly promised to close the prison for good and suspended the military commissions.

That left the problem of somehow resolving the unsettled status of the various detainees then in custody at Gitmo, individuals who essentially fell into three categories: those deemed not to pose a danger to the U.S. who were to be released; those considered too dangerous for release but -- thanks to tortured testimony -- not prosecutable even in military courts and were to be kept in indefinite detention (a group Miami Herald reporter Carol Rosenberg aptly termed "forever prisoners"); and those who would someday be tried by some version of the suspended military commissions.

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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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