David Remes, long-time Guantanamo habeas defense counsel, writes in with this recap of major Guantanamo developments in 2013:
The year saw heightened misery for the detainees, but also glimmers of hope. To protest their open-ended detention, the detainees staged a seven-month hunger strike. The prison warden broke the strike by making their lives too miserable to bear. The detainees continue to suffer torture and abuse, including humiliating genital searches. On the other hand, President Obama revived his efforts to close Guantanamo. He released nine detainees in December alone. In addition, Congress gave the President more flexibility to transfer detainees to foreign countries. Hopefully, in the coming year, the President will quicken the pace of transfers, and will resume sending Yemenis, the largest group of cleared detainees, home to Yemen.
There are 155 detainees currently at GTMO. They fall into the following groups:
- 76 cleared detainees, including 55 Yemenis
- 71 detainees being held indefinitely (Carol Rosenberg of the Miami Herald has called them “forever detainees in a forever war“)
- 6 detainees being tried by military commissions (the five 9/11 defendants and the alleged Cole bombing plotter Abd al-Rahim al-Nashiri)
- 2 detainees serving sentences after military commission convictions (Ali Hamza Ahmad Suliman al Bahlul and Majid Khan)
In his major policy major policy speech at the National Defense University on May 23, 2013, President Obama pledged to appoint State Department and Defense Department envoys for closing Guantanamo. Those envoys, Clifford Sloan and Paul Lewis, respectively, have revived detainee transfers. Since August, Obama has transferred 11 detainees, 9 in December:
- 4 Algerians
- 2 Saudis
- 2 Sudanese
- 3 Uighurs
The National Defense Authorization Act (NDAA) is an annual law that says how much the US Department of Defense can spend in the coming Fiscal Year (FY). Since 2011, the NDAA has restricted detainee transfers. In NDAA FY 2011, Congress prohibited transfers to foreign countries unless the Secretary of Defense (Secretary) certified – i.e., guaranteed – to Congress that the receiving country would prevent the transferred detainee from ever engaging in terrorism. (Transfers to the US were flatly barred.) Secretaries Panetta and Hagel were unwilling to give Congress such guarantees. No detainees were transferred in 2011 after the certification requirement kicked in. NDAA FY 2012 and NDAA FY 2013 provided a “waiver” if the Secretary determined that the transfer was in the interest of national security. That waiver provision was never used. Four detainees were transferred in 2012, but they were exempt from the certification requirement to begin with. Two were ordered released by a court, and 2 were released under plea agreements in military commission cases. There were no further transfers until August 2013.
On December 26, 2013, President Obama signed NDAA FY 2014. Instead of requiring the Secretary to make certifications or give guarantees to Congress, NDAA FY 2014 simply requires the Secretary to take certain terrorism-related factors into account in deciding whether to transfer a detainee to a foreign country. (Transfers to the US are still barred.) As a practical matter, President Obama will transfer only detainees whom his Administration has cleared, or whose transfer is required by a court or plea bargain. As mentioned, there are currently 76 cleared detainees. President Obama can and should send them home immediately. The fact that there is turmoil in Yemen is not a good reason to delay sending the 55 cleared Yemenis home. By definition, cleared detainees do not pose a significant threat to the US. There is scant evidence of “recidivism” among Yemenis sent home to Yemen.
In late July, President Obama activated a long-delayed Periodic Review Board (PRB) to examine the cases of the 71 detainees whom President Obama’s Guantanamo Review Task Force did not clear in 2010. The PRB has gotten off to a very slow start.
Whereas the Task Force was able to process the cases of 240 detainees in a single year, the PRB, six months in, is processing cases for only four detainees. (The first two are my clients—Mahmoud Abd al Aziz Abd al Mujahid, who had his hearing on November 20, and Abdalmalik Ahmed Abdel Wahab al Rahabi, who will have his hearing on January 28.) The PRB has not set schedules for the cases of the other two detainees, or announced any other cases.
5. Hunger strike
In early February 2013, the detainees began a general hunger strike, protesting the prison warden’s attempt to search their Qurans and their seemingly endless detention.
The strike peaked over the summer 2013, with 106 of 166 detainees striking. Forty-six of the 106 were sadistically force-fed through tubes snaked through their noses to their stomachs. The hunger strike began to dissipate in late July when Ramadan began. I believe the strike achieved its most important objective: It refocused public attention on Guantanamo and prodded President Obama to rededicate himself to closing the prison. I believe that the detainees ended their hunger strike mainly because the warden, Army Col John V. Bogdan, broke the men. He piled one misery atop another until he made their lives simply too miserable to endure. His greatest cruelty was to move hunger strikers from communal cellblocks to isolation cells, isolation itself being a form of torture. He also instituted the appalling genital search procedure for detainees wishing to leave their camps to meet with their lawyers or to have telephone calls with lawyers or family members. (Judge Royce Lamberth ordered the procedure halted, but it remains in effect pending appeal.)
Military commission defense lawyers called for an immediate investigation of Col Bogdan’s fitness for command, among other things. I have called for him to be immediately relieved of his command. Finally, it must be said that seven months is a long time to hunger strike, even without the added miseries.