Andy Worthington's Blog, page 96

The Scandal of Demonising the Unemployed When There Aren’t Enough Jobs

Last week, I received a comment on one of my articles from April 2013, The Tories’ Cruelty Is Laid Bare as Multiple Welfare Cuts Bite, from a reader — Rick — who, through no fault of his own, has found himself unemployed in a society that has been encouraged to regard anyone without a job as deserving of contempt, even though there are nowhere near enough job vacancies for everyone without a job — roughly one job vacancy for every three unemployed people if you take the government’s statistics at face value (and the statistics, it should be noted, hide an unknown number of people who have given up on trying to get a job and are supported by their partners).

The Tories claim to have created two million jobs since 2010, but those figures don’t stand up to scrutiny: there have been 500,000 job cuts in the public sector, average earnings have fallen by 5.7% in real terms, and far too many of those new jobs are on zero hours contracts, where people never know from one week to another whether they’ll be employed, and are rarely paid enough to live on, or are part-time jobs that also fail to provide a living wage.

The way this cruel and deeply cynical government has manipulated the public about the unemployed is just one example of the profoundly negative campaigning they have been encouraged to indulge in by their Australian PR guru, Lynton Crosby, and, to be frank, by the darkness in their own hearts.

Since they took power with the support of the Liberal Democrats in May 2010, the Tories have tarred the unemployed as feckless scroungers, just as they have tried to portray the disabled as liars — or as sub-human — and just as they have also gone along with and played up to fears about immigration that anyone with any genuine sense of responsibility would have tried to play down. I have been writing about these disgraceful policies since 2010, in articles like The Cruelty and Stupidity of the Government’s Welfare Reforms, Brutal Benefit Cuts for the Disabled Are Leading to Suicides in the UK, Who Will Rid Us of This Callous Government, Assaulting the Poor, the Unemployed and the Disabled? and The Tories’ Vile Workfare Project, and How It Has Now Infiltrated the NHS.

The results have been predictable. By encouraging, or failing to challenge, the drift of society towards intolerance — of the unemployed, the disabled and immigrants — the Tories clung on to power, but have helped to remake the country into something that all decent people should fear. Not only is it almost incredible that people in droves have failed to realise that the real problems facing the country are the parasitical bankers and corporate tax evaders and their cronies in government, but, in addition, the hardening of hearts against those less fortunate cannot lead anywhere good.

From the late 19th century to the 1980s, the establishment of the welfare state, and socialist ideals, improved life for the majority, but since Thatcher and Reagan that progress has been in reverse, and in 2010, for the first time in my lifetime, a government took office that openly failed to conceal its disdain for the least fortunate members of society. And when that happens, history teaches us that barbaric options follow — the workhouse, or something much worse.

I thought Rick’s thoughts were worth making available to a wider audience, so his comment, and my reply, are posted below.

Rick wrote:

I’m ashamed to live in a country like this. Yes, the British public will be all for benefit cuts, after all they have seen the numerous programmes on TV depicting the workshy drunks living the easy life while on benefits. It’s not the norm for the vast majority of claimants, but it makes good entertaining TV programmes I suppose.

The reality is somewhat different, I’m afraid, and the great British public that support these draconian measures (unless they’re a secret millionaire) are closer than they’d ever think to experiencing at first hand the indiscriminate application of these Victorian poverty state policies.

It’s easy to understand the spoilt brat/millionaire attitudes of people like Cameron and his ilk, who’ve never had to work for anything and find it easy to tell everyone else that they should be able to survive on £70 per week. It’s very telling that these spoilt brats probably wouldn’t think twice about spending the same amount on lunch for a day, but what amazes me is the rank and file (ordinary working people) that follow this thinking like sheep in the farm yard.

Yes, the benefits culture did need reforming and needed some original ideas to combat the something for nothing mindset of the minority of claimants, but this one size fits all mentality doesn’t fit.

My own personal opinion is that someone who is claiming needs help to get back into work, but that help isn’t there (I speak from personal experience). If someone has been unemployed for 2 years plus then they either need additional help or a kick up the ass to point them in the right direction. The key word here is HELP, not draconian measures to punish!

My own personal story: I’m a 52 year old male. I’ve worked constantly since I was 16 years of age, apart from 3 years when I looked after my dying father. I worked in education for the last 20 years (full time). Not a teacher, but ran Apprenticeship programmes and functional skills learning. Well qualified in I.T., Management and Health & Safety. Made redundant in Aug 2014, but lived off my redundancy and didn’t claim benefits till Dec 2014 (didn’t want to be classed as a scrounger).

I’ve been applying for jobs since Xmas 2014, must have 250 plus under my belt so far, 2 per cent get back to you (very discouraging). I’m overqualified for the basic jobs I apply for (they think I’ll leave as soon as something better comes along) and competing with people half my age for the higher end jobs. I’m no idiot, have good qualifications, a good CV and a good attitude but what seems to go against me is my age. I know that legally these companies can’t ask that, but I’ve never filled an application out yet that hasn’t asked me to provide my date of birth (sort that out, Mr Cameron).

I received a letter today to say I’d been awarded £11.40 council tax rebate. At the same time I received an e-mail telling me I would now receive £62.10 per week as my council tax rebate was counted as income. I thought the law stated that I needed £73.10 to live on per week? The wolves are at the door, the worst being the water company, closely followed by the council tax (both foaming at the mouth to bring a court case asap). I’m already resigned to the fact that the house will be re-possessed. Fair enough (nothing I can do about that). But where do you good people think I’m going to go from here?

I wrote back:

Thanks for getting in touch and sharing your story.

I find the indifference — or even hostility — of our fellow citizens towards those unfortunate enough not to have paid employment profoundly shameful, and while I understand the malevolent role played by the media, and the black propaganda of the Tories, it reflects very badly on the people of the UK that they are so willing to be openly hostile to those without paid work. What we never hear about is how, even using the most conservative estimates, there are nowhere near as many job vacancies as there are unemployed people, and that as a result it is profoundly unfair to condemn people for being workshy, scroungers etc.

In January, for example, the Department for Work and Pensions claimed that there were 700,000 job opportunities across the country.

At the same time, however, the Office for National Statistics was pointing out that “There were 1.91 million unemployed people.”

The only way to demonise 1.91 million people for not getting 700,000 jobs would be if there was a governmental guarantee of full employment, and we haven’t heard that since capitalism pronounced that it had killed socialism, around the time the Berlin Wall fell. George Osborne’s promise in March 2014 — his “commitment to fight for full employment in Britain” — was something else; the empty words of a Tory politician. As the Guardian noted at the time, “Britain’s employment rate among those aged 16-64 presently stands at 71% — ahead of the US, France and Italy, but behind Germany, Canada and Japan. Leapfrogging them would entail creating up to a million more jobs. Manage that, George, and you might get the full three cheers.”

I also find it interesting that the ONS statistics hint at potentially huge hidden unemployment figures, because the percentage of people aged from 16 to 64 who are in work is only 73%, and 9.09 million people “were out of work and not seeking or available to work (known as economically inactive).” For more on definitions and an analysis of economic inactivity, see this article from the Economic & Labour Market Review in 2009.

As The Poverty Site explains, “[C]an [we] simply ignore the economically inactive when looking at issues of work? The answer is emphatically not. First, the fact that they are not working means that they have no earned income and many are therefore poor. Second, many of them say that they want to work and it is just due to their personal circumstances that they count as economically inactive rather than unemployed (e.g. lone parents would have to make arrangements for childcare). Third, their numbers are large, much larger than those who are … unemployed.”

I looked up whether the £73.10 that the law says people need to live on is “inalienable” benefit and found that someone had made a freedom of information request and had received this reply in November 2014.

That document explains how deductions may indeed be made from the “inalienable” benefit — for unpaid bills, for example, and includes the insulting claim that “In effect we are acting in the best interests of the claimant — we want to avoid them being evicted or having a utility switched off etc.”

I also agree about ageism in the market place. I’m 52 and wouldn’t want to have to try and compete with people half my age, but as you note it’s not something that anyone wants to talk about — similar, I think, to the way that disabled people, subject to a cynical review process designed to find them fit for work when they are not, are not supposed to point out that, even if they are able to work, they are extremely unlikely to be chosen for jobs if the other candidates are not disabled.

Mostly, though, your story is one of many that ought to be more widely heard, and people should, I believe, be regularly told — preferably through the media — that, unless we’re really quite rich, we’re all only a few steps away from having no job, and having to endure the kind of hostility and indifference you discuss so eloquently.

In response, Rick sent me further comments, including the following, which I think is a good point at which to end this discussion for now, although I hope this article will lead to further discussion. Please feel free to add your own comments.

Rick wrote:

I suppose the main point I was trying to make was that today it’s me, tomorrow it could be you or anybody else. The great British public who so enthusiastically  jump on the bandwagon and applaud benefits being cut to the bone may one day soon (through no fault of their own) be on the receiving end of these Victorian poverty policies. It’s not just down to one political party, it’s all of them. Who would have thought 30 years ago that one day food banks would be common in one of the richest countries in the world? Who knows what’s coming next: the return of the workhouse?

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Clive Stafford Smith Confirms That Shaker Aamer Could Be Released from Guantánamo in June

Back in April, the Washington Post suggested that ten prisoners were in line to be freed from Guantánamo in June, and that Shaker Aamer, the last British resident in the prison, “may be resettled as early as this summer.” A Saudi national, Shaker was granted indefinite leave to remain in the UK, where his wife, a British national, and his four children live, including his youngest son, born on the day he arrived at Guantánamo in February 2002.

The suggestion that he might be released soon gave hope to his supporters, who have been campaigning for years for his release  — and, more generally, for those who are appalled that anyone should be held in Guantánamo year after year without charge or trial, and after twice being approved for release by high-level US government review processes, in 2007 and 2009, as is the case with Shaker, a vocal critic of the US “war on terror,” who has always fought for the prisoners’ rights throughout his 13 years in US custody.

The suggestion that he might be released soon also gave impetus to the delegation of MPs that visited Washington, D.C. last week, meeting Senators including John McCain and Dianne Feinstein, and stressing the urgent need for a timetable for Shaker’s release — see, for example, the strong words of Andrew Mitchell MP, as reported in the Daily Mail just two days ago.

“We have been unable to shake off the depressing notion that the US administration is indifferent to the request of the British Government … for the reasonable release of one of our residents, a request made specifically by the Prime Minister,” Mitchell said, adding, “We’ve shed blood and treasure in two controversial wars in Iraq and Afghanistan. And for our Prime Minister and us to be treated this way by America is insulting to their oldest ally. It is doing increasing damage to the Anglo-American relationship and is a thorn in the side of our friendship. Is it not a slap in the face from our oldest ally and staunchest friend?”

Now, however, we hear from Clive Stafford Smith, the founder of the legal action charity Reprieve, and Shaker’s lawyer for many years, that Shaker may indeed be freed within weeks. Speaking to Victoria Derbyshire of the BBC, he said, “I have heard from various sources, which are very reliable I hope, that he is to be released in June.”

He added, “But of course we’ve had promises before and the worst thing one can do is, both for Shaker and for his wife and children, to promise something that may not happen. But there’s no good reason why it wouldn’t happen.”

As the BBC explained, Stafford Smith said that President Obama’s pledge to close Guantánamo is “the primary reason behind Mr. Aamer’s likely release,” adding, “And he can’t do that unless he gets rid of the 57 people who have been cleared at least — and Shaker has been cleared for eight years now.”

Stafford Smith also said that “it’s also down to the incredibly good work by so many people, like Andrew Mitchell who visited the US with three other MPs. I have a letter here with me from Shaker where he’s incredibly grateful for that. So many people have done so many great things to help him and I think that’s had a great impact.”

The BBC mentioned US allegations that Shaker Aamer “had led a unit of Taliban fighters and had met former al-Qaeda leader, Osama Bin Laden,” although Shaker himself has always “maintained he was in Afghanistan with his family doing charity work,” and in response Stafford Smith said, “In Shaker’s case, the proof in the pudding is that he was cleared by the Bush administration and cleared by the Obama administration. So if they clear him and all six of the national security agencies say he should be released, then it’s quite hard to make the argument that he’s guilty of something.”

He added, “The world is insane. I go to Guantánamo and see a place where still half of the prisoners who are there have been cleared for release. What other prison is there in the world where 50% of the prisoners are told you’re free to go but you can’t go?”

Andrew Mitchell also spoke to Victoria Derbyshire, telling her, when asked about the US visit he undertook with David Davis, Andy Slaughter and Jeremy Corbyn, “We’re hopeful we advanced the case. We spoke to a number of senior senators who were as perplexed as we are about why it was taking so long for him to be released for transfer back to the United Kingdom.”

He added, in a variation of what he told the Daily Mail, “Our prime minister asked for him to be transferred earlier this year on his visit to the United States and it is incomprehensible that the United States would treat its oldest ally and staunchest friend in this very cavalier way.”

You can watch a clip of Clive Stafford Smith speaking here, and, while preparing to publish this article, I also heard from former Guantánamo prisoner Moazzam Begg that he too had heard similar news about Shaker’s imminent release. “This is what it was told last week too,” he wrote on Twitter, adding, “I pray it’s true.”

Speaking personally, as someone who has been writing about Shaker for nine years, and speaking on behalf of the We Stand With Shaker campaign, which I co-founded in November with Joanne MacInnes, and as a long-time supporter of the Save Shaker Aamer Campaign, I also fervently hope that it’s true.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Incommunicado Forever: The Colossal Injustice of Torture Victim Abu Zubaydah’s Ongoing Imprisonment Without Charge or Trial at Guantánamo

It’s been some time since I wrote about Abu Zubaydah (Zayn al-Abidin Muhammad Husayn), one of 14 “high-value detainees” transferred from secret CIA prisons to Guantánamo in September 2006, beyond discussions of his important case against the Polish government, where he was held in a secret CIA torture prison in 2002 and 2003. This led to a ruling in his favor in the European Court of Human Rights last July, and a decision in February this year to award him — and another Guantánamo prisoner and torture victim, Abd al-Rahim al-Nashiri — $262,000 in damages, for which, just last week, a deadline for payment was set for May 16, even though, as the Guardian noted, “neither Polish officials nor the US embassy in Warsaw would say where the money is going or how it was being used.”

I wrote extensively about Abu Zubaydah from 2008 to 2010, when there was generally little interest in his case, and I have also followed his attempts to seek justice in Poland since the investigation by a prosecutor began in 2010, leading to his recognition as a “victim” in January 2011, just before I visited Poland for a brief tour of the film I co-directed, “Outside the Law: Stories from Guantánamo,” with Moazzam Begg.

I have continued to follow Abu Zubaydah’s story in the years since, as other developments took place — when Jason Leopold, then at Al-Jazeera America, got hold of his diaries, which the US authorities had refused to release, and last December, when the executive summary of the Senate Intelligence Committee’s  report into the CIA’s torture program was released, and one of Abu Zubaydah’s lawyers, Helen Duffy, wrote an article for the Guardian, entitled, “The CIA tortured Abu Zubaydah, my client. Now charge him or let him go.” following the revelations in the report that, if he survived his torture, his interrogators wanted assurances that he would “remain in isolation and incommunicado for the remainder of his life,” and senior officials stated that he “will never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released.”

Abu Zubaydah has always been one of the most significant prisoners in the “war on terror”, not because of what he did, but because of what was done to him. The torture program was developed for him, leading to him being waterboarded 83 times, and it evidently severely damaged him physically and mentally, from the hints dropped by his lawyers over the years. In addition, the Bush administration publicly claimed that he was a significant member of al-Qaeda, when that was untrue — and, it seems, both the torture and the lies told about him means that he will probably never be charged, although there is no prospect of him being released either.

As the executive summary of the torture report revealed, his interrogators wanted assurances that, if he survived his torture, he would “remain in isolation and incommunicado for the remainder of his life,” and senior officials responded by stating that he “will never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released.”

The fact that we know anything at all about Abu Zubaydah is in many ways remarkable. Although documents have been leaked (like his diaries, and, years before, the account of his imprisonment and torture by the CIA that he gave to the International Committee of the Red Cross), and other accounts have, eventually, been made publicly available (like the executive summary of the CIA torture report), every word that he has uttered to his lawyer since he arrived at Guantánamo nearly nine years ago remains classified — as does every word uttered to their lawyers by any of the “high-value detainees.”

This secrecy — designed, cynically, to prevent the men’s torture being publicized — is disgraceful, and it is, I think, no less disgraceful that this blanket censorship of the CIA’s torture victims has been so shamefully under-reported in the mainstream media.

As a remedy, I recommend — and am cross-posting below — a detailed and revealing report about Abu Zubaydah by Raymond Bonner, a former reporter for the New York Times, which he wrote for ProPublica and Politico, and which was published two weeks ago, looking particularly at the obstructions to his habeas corpus petition over the last seven years.

I hope you find it useful, and will share it if you do.

‘Incommunicado’ Forever: Gitmo Detainee’s Case Stalled For 2,477 Days And Counting

By Raymond Bonner, Special to ProPublica, May 12, 2015

The Senate torture report chronicled the CIA’s interrogation of high-profile detainee Abu Zubaydah, but the justice system’s treatment of his habeas corpus petition has largely escaped notice.

Since being seized in a raid in Pakistan in 2002, Abu Zubaydah has had his life controlled by American officials, first at secret sites, where he was tortured, and since 2006 in a small cell in Guantánamo Bay, Cuba. And, thanks to one of the strangest, and perhaps most troubling, legal cases to grow out of the War on Terror, it appears he’s not going to be leaving anytime soon — which was exactly the plan the CIA always wanted. Not even his lawyers understand what’s transpired behind closed doors in a Washington, D.C., courtroom.

In June of 2008, the Supreme Court ruled that detainees at Guantánamo had the right to challenge their imprisonment in federal court and that their cases should be handled “promptly” by the judicial system. The next month, lawyers for Abu Zubaydah, a detainee whose torture and waterboarding in secret prisons was among the most notorious of the Bush years, filed a lawsuit in federal court challenging his detention.

The progress of that case has been anything but prompt. While more than 100 Guantánamo detainees have been released since then, and the military tribunals of even more high-profile detainees like 9/11 mastermind Khalid Sheikh Mohammed are moving forward in Guantánamo’s courtrooms, the federal judge hearing Zubaydah’s case has failed to rule on even the preliminary motions.

The seemingly intentional inaction has left even experienced court observers baffled. Richard W. Roberts, the U.S. District court judge handling the suit, is not a particularly slow-moving judge. His median time for resolving entire cases is slightly over two years; Zubaydah’s initial plea has already been pending 6 years 9 months and 12 days.

Because the entire file has been kept secret, it’s not possible to know why Roberts, who is the chief judge of the D.C. circuit, has let Zubaydah’s case languish. But this much is clear: Keeping Zubaydah from telling his story is exactly what the CIA wanted from the moment it began to torture him. And it’s exactly what they promised they’d do in 2002 during one of the darkest chapters of the War on Terror. (He was one of the first al-Qaeda suspects to face the harsh new regime implemented by the CIA following 9/11 — a regime that FBI agents at the scene tried to prevent.)

Soon after the agency’s contractors began their program of “enhanced interrogation’’ at the secret black site in Thailand — placing him in a coffin-size box; slamming him against wall; depriving him of sleep; bombarding him with loud music; as well as waterboarding — they sent an encrypted cable to Washington.

The CIA interrogators said that if Zubaydah died during questioning, his body would be cremated. But if he survived the ordeal, the interrogators wanted assurances that he would “remain in isolation and incommunicado for the remainder of his life.”

Senior officials gave the assurances. Zubaydah, a Saudi citizen, “will never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released,” the head of the CIA’s ALEC Station, the code name of the Washington-based unit hunting Osama bin Laden, replied. “All major players are in concurrence,” the cable said, that he “should remain incommunicado for the remainder of his life.”

The decision to hold Zubaydah “incommunicado” was disclosed by the Senate report on torture, which was released last December. But the judicial inaction on his case has received virtually no public attention.

In all, Roberts has failed to rule on 16 motions, 13 of which have been filed by Zubaydah’s lawyers. Several of those allege misconduct by the government.

Roberts’ judicial inaction runs the gamut: Zubaydah’s motion for an un-redacted copy of his own diary, which the government seized, has sat for six years without any ruling by the judge. His habeas corpus petition was sealed at the request of the government. Zubaydah’s lawyers filed to have it declassified. It remains classified.

A lawyer with the Center for Constitutional Rights, which has been at the forefront of lawsuits to gain the release of Guantánamo detainees, says he has been baffled by the judge’s inaction. “It appears to be highly unusual,” says the lawyer, J. Wells Dixon, who has represented several Guantánamo detainees, but is not involved in the Zubaydah case. In contrast to Zubaydah’s case, Dixon said that 64 Guantánamo detainees who filed habeas petitions have seen their cases adjudicated.

Rooted in English common law, the principle of habeas corpus is a cornerstone of the American legal system. In England, it served as a check on the king’s power to lock someone in the dungeon and throw away the key. Dixon noted that the Supreme Court has said habeas was designed to be a “swift and imperative remedy.”

Yet Judge Roberts appears content to let Zubaydah’s case languish. Compared to his handling of other cases, the jurist has been anything but “swift” in Zubaydah’s case. For cases he closed in 2014, the median time from filing was 751 days, according to data assembled for ProPublica by the Transactional Records Access Clearinghouse, a nonprofit organization at Syracuse University. The longest any closed case had been on his docket was 1,651 days, according to TRAC. Zubaydah’s case has been pending for some 2,400 days, and it will be years before it goes to trial, if it ever does.

There are few answers for why Zubaydah’s case has gone so far off track — and there’s nothing in Roberts’ background or recent behavior on the bench that would make him seem incapable of ruling if he desired. He was appointed to the court by President Bill Clinton in 1998 and has a fairly typical background for a federal judge: A Columbia law school grad, he rose through the ranks of the Department of Justice, working as an assistant U.S. attorney in the Southern District of New York and as principal assistant U.S. attorney for the District of Columbia. He later spent three years as the chief of the criminal section at the Justice Department’s Civil Rights Division. Absent the apparently intentional aberration of the Zubaydah case, his court docket proceeds as normal in Courtroom 9 on the fourth floor of the U.S. District Courthouse on Pennsylvania Avenue NW.

A spokeswoman for the federal district court declined to comment on the case.

One possible clue about the judge’s failure to act may be found in a motion Zubaydah’s lawyers filed in 2010. They asked Roberts for access to any “ex parte filings,” which is evidence the government shows the court outside the presence of the other side’s lawyers.

In other cases involving detainees, secret prisons, watch lists and challenges to domestic spying, the Justice Department has attempted to win dismissals by presenting classified evidence to judges in the secrecy of their chambers.

A rare insight into how that tactic is deployed was made public by a federal judge in San Francisco in a lawsuit by a Malaysian woman who challenged her placement on the no-fly list. The government sought to dismiss the case on the grounds of national security. In a ruling on the motion, the judge, William H. Alsup, described what happened next: “A telephone call came into the court staff saying that a federal agent was on the way from Washington to San Francisco to show the judge confidential records about this case, all to be relied upon by the government in support of its motion to dismiss (but not to be disclosed to the other side). The officer would take back the records after the judge reviewed them and would leave no record behind of what he had shown the judge.”

In that case, Alsup declined to receive the officials, although he did receive other ex parte filings in the case.

It’s not clear whether Judge Roberts has received a comparable offer, and if so, how he reacted. But it’s unlikely that if such a meeting or meetings happened, the public would ever know — and likely that not even Zubaydah’s own lawyers would know about it, unless Roberts came forward as Alsup did.

Although the case is an infamous one, it’s worth recalling the details of Abu Zubaydah’s custody in U.S. hands.

He was captured in a joint Pakistani-CIA-FBI operation in Lahore, Pakistan, in March 2002, during which he was shot in the groin, leg and stomach. Severely wounded, Zubaydah lingered near death as the CIA, which wanted him alive for interrogation, flew in a top surgeon from Johns Hopkins in Baltimore. Later, Zubaydah was handcuffed, hooded, drugged and flown to Thailand, where the CIA was in the process of creating one of its first “black sites.” Initially interviewed by the FBI, Zubaydah cooperated. FBI Special Agents Ali Soufan and Steve Gaudin even held ice to his lips so he could receive fluids. Zubaydah told the agents that Khalid Sheik Mohammad was the mastermind of the 9/11 attacks and gave them further detailed information about him, including his alias — the news ricocheted across Washington and Zubaydah became a pawn in the capital’s power tussle between the FBI and the CIA.

CIA Director George Tenet wasn’t satisfied with the progress on the interrogation. The agency was convinced that Zubaydah knew more, that he was a high-level al-Qaeda operative, and that he was withholding information about pending terrorist plots. Thus, Zubaydah became the guinea pig for what the Bush Administration called “enhanced interrogation techniques.” The FBI pulled its agents out of Thailand as the CIA’s plans for the prisoner became clear — but not before the agents got one final useful tip: Zubaydah pointed them to a name “Abu Abdullah al Mujahir” that eventually led agents to José Padilla, a would-be jihadist who was arrested in Chicago on May 8, 2002.

Meanwhile, the CIA started in on Zubaydah. For 47 days, he was held in complete isolation, with only a towel. Then, shortly before noon on August 4, 2002, hooded security personnel entered his cell, shackled and hooded him, and removed his towel, leaving him naked. “So it begins,” a medical officer in Thailand cabled CIA headquarters about the first day’s session.

Interrogators placed a towel around his neck, as a collar, and slammed him against a concrete wall. They removed his hood and had him watch while a coffin-like box was brought into the cell. The waterboarding started, “after large box, walling, and small box periods,” the medical officer reported. “NO useful information so far.” He added, “I am head[ing] back for a waterboard session.” During the waterboarding Zubaydah frequently vomited, made “hysterical pleas,” and experienced “involuntary leg, chest and arm spasms.”

After a few days, some of the individuals involved in Zubaydah’s interrogation were deeply disturbed, to the “point of tears and choking up,” the team cabled Washington.

Over the course of the interrogations, Zubaydah “cried,” he “begged,” he “pleaded,” he “whimpered,” the team in Thailand reported to headquarters in various cables. But he never gave the CIA information about plans for attacks in the United States. And in the end, the CIA “concluded that Abu Zubaydah had been truthful and that he did not possess any new terrorist threat information,” the Senate torture report says. He was not even a member of al-Qaeda.

Yet even though the torture was over, Zubaydah’s ordeal was just beginning. For nearly a decade, he’s been shuttled around the world and held in legal limbo — even as hundreds of detainees have been transferred or released and court cases have moved forward for other suspected terrorists at Guantánamo.

After the first media reports appeared about a CIA secret prison in Thailand, Zubaydah was moved to a secret site in Poland. A year ago, the European court of human rights ruled that Poland had been complicit with the United States in subjecting Zubaydah to “inhuman and degrading treatment,” and ordered Poland to pay him reparations. After losing an appeal, Poland paid Zubaydah 100,000 Euros, which Zubaydah has said he will give to victims of torture.

Zubaydah, who was transferred from Poland to Guantánamo Bay in 2006, has not fared well with the American judicial system even as his lawyers have attempted to nudge the case forward to a conclusion.

Much of the case remains wrapped in secrecy, meaning that his lawyers are unable to discuss or elaborate upon much of their work or knowledge of the case. Glimpses into it, though, are possible through the languishing court filings. Zubaydah’s lawyers have filed two motions that raise questions about the government’s conduct in the case. In 2010, they sought an “order prohibiting the government from obstructing petitioner’s investigation.” The court hasn’t ruled, and we don’t know what might have prompted this request because the documents are sealed. Similarly, three years ago, Zubaydah’s lawyers asked for sanctions against the government because of what they said was “the improper seizure” of documents “subject to the attorney-client privilege.” Again, Judge Roberts has yet to rule.

Frustrated by the inaction in the case, Zubaydah’s lawyers filed a motion in January asking the judge to recuse himself for “nonfeasance.” It is an unusual motion. Judges are occasionally asked to recuse themselves because of conflicts of interest or bias, but not for simply failing to act. The government has filed its response, which is sealed, and the judge — perhaps not surprisingly, given the track record thus far — has not yet ruled.

“We don’t take this step lightly,” said Joseph Margulies, one of Zubaydah’s lawyers. Margulies, an experienced criminal defense lawyer who has represented several Guantánamo detainees and is a professor at Cornell University School of Law, added, “I have never seen a case in which there has been this much judicial inaction. There has to be a remedy.”

But there may not be. If Judge Roberts “ignores Abu Zubaydah’s case, there is very little we can do,” said Margulies. “The net effect is that the CIA wins.”

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Former Guantánamo Prisoner Asim Al-Khalaqi Dies in Kazakhstan, Four Months After Being Freed

Vice News broke the news on Thursday that Asim Thabit Abdullah al-Khalaqi, a Yemeni, and a former prisoner at Guantánamo, died in Kazakhstan, just over four months since he was freed, after spending 13 years in US custody without charge or trial.

The 46- or 47-year old, identified in Guantánamo as ISN 152, was one of five men freed on December 31, 2014, 13 years and one day after his capture, on December 30, 2001, in Pakistan. Three weeks later, he was flown to Guantánamo, less than two weeks after the prison opened.

As I explained in an article in 2012, entitled, “Guantánamo Scandal: The 40 Prisoners Still Held But Cleared for Release At Least Five Years Ago,” al-Khalaqi was approved for release under President Bush, as well as by President Obama’s high-level, inter-agency Guantánamo Review Task Force in 2009:

In the classified US military files relating to the Guantánamo prisoners, which were released by WikiLeaks in April 2011, al-Khalaqi’s file was a “Recommendation for Transfer Out of DoD Control (TRO),” dated January 1, 2007. A transfer recommendation (for “transfer with conditions”) was also made after his Administrative Review Board Round Three, on August 20, 2007 (PDF, p. 159).

As I also explained in 2010:

As described in The Guantánamo Files, al-Khalaqi stated that he “went to Pakistan with a friend to preach with Jamaat-al-Tablighi, but decided to go to Afghanistan after discovering that there were too many Tablighi representatives in Pakistan. He explained that he and his friend were successful in their mission, but everything changed after 9/11, when his friend ‘went one day to go eat lunch and didn’t return home.’ He then met an Afghan, who advised him to leave because Arabs were being killed, and explained that this man took him in his car to the foothills where he joined a group of Arabs crossing the mountains to Pakistan and handed himself in to the army on arrival.” The US authorities allege[d] that he undertook military training and was on the front lines at Bagram.

As Vice News explained, he was resettled in Kazakhstan — because the entire US establishment refuses to contemplate releasing Yemenis in their home country because of security fears — “under the care of the International Committee of the Red Cross, operating locally as [the] Red Crescent.”

Vice News also explained that al-Khalaqi “was found unconscious in his apartment in Kyzylorda on May 7 and was brought to the hospital with suspected food poisoning,” although an autopsy “later revealed that he died of kidney failure and showed he had a severe lung infection.”

The article added that he “was overweight and suffered from gout, and frequently fell unconscious during his detention in Guantánamo,” according to Abdullah Bin Ali al-Lutfi, a Tunisian and another former prisoner released in Kazakhstan in December, who was also identified in Guantánamo as Mohammed Abdul Rahman or Lotfi bin Ali (ISN 894), and had first been approved for release in 2004.

“We know about how he gets,” al-Lutfi said, adding, “When we were in Guantánamo in Cuba, he would get into a coma. When he’s in this state, the soldiers would come get him with a cart. So he needed close supervision.”

Al-Lutfi also explained that al-Khalaqi “lived alone in a sparsely furnished apartment in Kyzylorda and was frequently hospitalized since being resettled there.”

Vice News added that, when the five men — three Yemenis and two Tunisians — were released in Kazakhstan, “The Yemenis were brought to Kyzylorda, in the south of Kazakhstan, and the Tunisians to Semey, in the east.” The author of the article, Claire Ward, also stated that, via an agreement with the Kazakh government, the local chapter of the Red Cross (the Red Crescent) looks after the former prisoners, providing “healthcare, food stipends, language classes, and transport.”

The ICRC had been alerted by one of the other Yemenis in early May, when al-Khalaqi fell ill. Al-Lutfi explained, “The situation was very bad inside. When they entered, there was a bad stench because he couldn’t go to the bathroom. He was in a really bad state.”

Al-Lutfi said he “had spoken to al-Khalaqi via Skype just three days before he died,” as Vice News put it, explaining that they “had been discussing the challenges of integration.”

“We talked about marriage the whole time in our last conversation,” al-Lutfi said. “He said, ‘Really Abdullah, I’m eating bread and potatoes to save up money so I could get married.'” He described al-Khalaqi as “a calligraphist and a poet,” pointing out that he “had written a poem about his living conditions days and read it to al-Lufti in their final conversation.”

As Vice News also explained, although the former prisoners “are technically ‘free men’ in Kazakhstan,” the exact details of the arrangement for their resettlement is unclear.

Al-Lutfi said that, initially, “The police used to come almost every day to the apartment. They would open the door and enter and check the place for a minute or two, then they would leave.” He acknowledged that “the check-ups have become less frequent over time,” as Vice News put it, but the insensitivity of the police was clearly a cause of distress. “It’s as if it’s Guantánamo 2, to be honest,” al-Lutfi said.

Vice News also stated that al-Khalaqi’s body “was buried in a local Muslim cemetery around 4pm on the Saturday following his death.”

In response to a request for a comment, Capt. Tom Gresback, a Guantánamo spokesman, told Vice News, “Every detainee is given a thorough health screening prior to transfer,” adding, “The detainee would not have been transferred if he failed the health screening.” He also “rejected any suggestion that al-Khalaqi didn’t receive adequate medical care while he was held captive at Guantánamo,” as Vice News put it. “All detainees receive the same medical care as the US Service men and women serving here,” he said, adding, “The medical professionals serving at the detention facility at Guantánamo are the best United States medicine has to offer — bar none.”

Another former prisoner who knew him, Abu Wa’el Dhiab, a Syrian released in Uruguay at the start of December, told the Guardian that al-Khalaqi “died on 7 May of kidney failure, as “a consequence of his years in Guantánamo and the lack of proper healthcare both in the prison and in Kazakhsrtan.”

His lawyer, Ellis Johnston, a public defender in San Diego, could not be reached for comment, but his death was confirmed by both the Pentagon and the State Department on Friday.

Dhiab, who, as the Guardian put it, “kept in touch” with al-Khalaqi after the two men were released, “blamed the long internment for his friend’s death.” Noting his friend’s chronic gout, he said, “He repeatedly requested health attention through his lawyer, but after a few medical checks he was told he was fine.”

Another Guantánamo spokesman, Lt. Col. Myles B. Caggins III, denied Dhiab’s claim, in comments that were almost identical to those made by Capt. Tom Gresback “All detainees have access to the same outstanding medical care as the US service members serving at Guantánamo, and are given a thorough health screening prior to transfer,” he said, adding, “Mr. al-Khalaqi would not have been transferred if he failed the health screening.”

The Guardian also spoke to Dr. Stephen Xenakis, who works on torture issues with Physicians for Human Rights, and who testified during Dhiab’s court case against the US last year, in which he sought to have a judge prevent his force-feeding as a hunger striker.

Xenakis, as the Guardian put it, “said a number of factors contribute to less than adequate care for inmates at Guantánamo, including limitations on resources and equipment, and a constantly rotating medical staff that is unable to provide continuity of care, essential for the ageing population at the prison.” He added, “Care providers there are more constrained and managed by the guards and authorities than they are in prisons in the US. It causes a lot of variation. So if a prisoner is liked, he may get the care he needs, and if not, the guards will intercede in a way and effectively deny the person what he needs.”

Dhiab also said that, In the weeks before his death, al-Khalaqi was unable to walk. “When Red Cross staff paid a visit to his home, he threw the keys through the window, so the visitors could open the door by themselves,” he said.

Dhiab also said, “We talked on Skype days before his death. He told me he wished to get married,” confirming al-Lutfi’s comments about his preoccupations in his dying days.

Dhiab also said that some of the former Guantánamo prisoners in Kazakhstan “were forbidden to attend the funeral” by the local authorities, as the Guardian put it. Dhiab said the authorities had cited “internal security concerns.”

Explicitly refuting the position taken by the spokesmen at Guantánamo regarding health screening, Dhiab said, “When a prisoner’s health becomes very fragile, the American military seek to release him as soon as possible to avoid the responsibility of a death in prison,” a position that I regard as accurate. In December 2013, for example, Ibrahim Idris, a Sudanese prisoner who was severely ill, was freed, and, as the Guardian noted, al-Khalaqi’s friend Abdullah Bin Ali al-Lutfi is also ill.

After explaining first of all that the conditions of imprisonment at Guantánamo have “badly affected the health of inmates, many of whom are said to suffer from prostate and eye diseases, high cholesterol and hypertension,” the Guardian pointed out that al-Lutfi, 49, regarded as the “most seriously ill” of the men sent to Kazakhstan, “has a mechanical heart valve and suffers from chronic heart rhythm, kidney stones and high blood pressure.”

The Guardian also explained that “Dhiab, who is recovering from hunger strikes and forced feedings, still has to walk with crutches,” adding that he said that the problems facing the former prisoners in Kazakhstan “was identical to what he and five other former prisoners experienced in Uruguay,” as the Guardian put it. “We have visited the hospital many times, but without getting the specific and proper healthcare we need,” he said, adding, “After jailing those people for years with no charges, the US sets them free without providing any support to ease the damage they inflicted.”

I am sorry to hear of the death of Asim al-Khalaqi, and I can only hope that all of the former prisoners resettled in other countries receive the best support possible, as it is clearly extremely difficult for former prisoners, far from home and without the support of their families, to overcome the trauma caused by their long imprisonment without charge of trial in an experimental prison, founded on torture and abuse, that should never have existed.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

MPs Visit US to Discuss the Release of Shaker Aamer from Guantánamo with John McCain and Dianne Feinstein

On Tuesday, in an open letter to President Obama and defense secretary Ashton Carter that I drafted, 13 rights groups, including Close Guantánamo and We Stand With Shaker, as well as Amnesty international USA, the Center for Constitutional Rights, Reprieve and others, called for the release of 57 men from Guantánamo (out of the 122 men still in the prison), who are still held despite being approved for release, the majority for over five years.

One of the 57 is Shaker Aamer, the last British resident in Guantánamo, and one of the reasons I initiated the letter was to coincide with a visit to Washington, D.C. by a delegation of British MPs, from the Shaker Aamer Parliamentary Group, which was established last November, and, in March, secured the support of the government for the following motion — “That this House calls on the US Government to release Shaker Aamer from his imprisonment in Guantánamo Bay and to allow him to return to his family in the UK.”

The MPs who flew to the US for meetings to try to secure Shaker’s release are the Labour MPs Jeremy Corbyn (a longtime colleague of the Shaker Aamer Parliamentary Group’s chair, John McDonnell) and Shadow Justice Minister Andy Slaughter, and the Conservative MPs David Davis (a former Shadow Home Secretary) and Andrew Mitchell (a former Chief Whip and former International Development Secretary).

On Tuesday the MPs met with three Senators — Patrick Leahy (D-VT) and Dick Durbin (D-IL), who, with their colleague, Dianne Feinstein (D-CA), recently wrote a letter to President Obama calling for the release of the 57 men approved for release, and Joe Manchin (D-WV). The MPs also met Paul Lewis, the Special Envoy for the closure of Guantánamo in the Pentagon, and Charles Trumbull, the Acting Special Envoy for the closure of Guantánamo in the State Department.

Yesterday the MPs had two more high-level meetings with Senators — with John McCain (R-AZ), the former Presidential candidate who is currently the chair of the influential Senate Armed Services Committee, and Dianne Feinstein, the vice-chair of the Senate Select Committee on Intelligence, who, as chair, oversaw the creation of the Committee’s report into the CIA’s torture program, whose executive summary was published in December.

As Reprieve explained in a press release yesterday, Shaker, who is now 48 years old, “has never been charged, never faced a trial and has been cleared for release under both the Bush and Obama administrations – a process requiring unanimous agreement by six US Federal agencies including the Departments of State and Defence and the FBI.”

Alka Pradhan, one of Shaker’s lawyers in the US, who accompanied the MPs in their Washington meetings, said, “It is enormously encouraging that the MPs are meeting with such high-level US congress people as Senators John McCain and Dianne Feinstein. Hopefully this will convey to those in the US the strength of British support for Shaker’s return home to London. For thirteen long years Shaker’s British wife and their four children have endured life without him, despite his having been cleared for release twice. US officials must give the MPs a clear timeline for Shaker’s return home.”

After the visit, Alka Pradhan told me that the MPs “presented a completely united front” and “did a truly spectacular job in speaking for Shaker, his family, and the UK.”

Prior to the MPs’ departure for the US, David Davis spoke to ITV News, and said, “Guantánamo itself is not a good symbol for the West. We are in a battle with Islamic extremists, but it’s a battle not just of bullets and bombs, it’s a battle of ideas, a battle of ideals. We’re the good guys in this argument. We’re the people who believe in democracy, believe in freedom, believe in liberty, believe in the rule of law. None of these are really advanced by the symbol of Guantanamo. And so we want it over, we want it behind us, really, and we share that view with a large number of American Senators and Congressmen.”

Andrew Mitchell also spoke to the Birmingham Mail before his departure, saying, “We are heading to Washington to seek to promote and extract the release of Shaker Aamer, who is held in Guantánamo. He’s not been charged with anything, he’s been cleared for release by all the top US agencies.”

Mitchell added, “The Americans have said there is no evidence available to try him. The reality is you’re innocent until proven guilty and it’s just wrong that he’s been treated in this way.”

In Washington, D.C., Jeremy Corbyn and Andrew Mitchell spoke to RT. Jeremy Corbyn said, “He’s been twice cleared for release, by President Bush and later by President Obama, and this has still not happened.” He added, “We’re concerned for his future, we’re concerned for his health, and we’re concerned for justice, because there’s no charge against him, there’s no legal process against him. He is a man that should be freed.”

Corbyn added that “the reasons for Shaker’s long imprisonment are unclear,” as RT put it. “There’s much speculation,” he said. “Either he knows too much, or has seen too much, or Saudi Arabia has put pressure on. I have never been given a definitive reason as to why he’s not been released.”

Andrew Mitchell said, “We’ve come as a very broad representation from the British Parliament. From the left to the right, the four of us probably represent the widest spectrum of British political views. But on this issue the House of Commons in Britain is absolutely clear, that we unanimously want Shaker Aamer returned from Guantánamo.”

He also said that the delegation “met a great deal of sympathy” at meetings in the US capital.

Speaking to RT prior to his departure, Mitchell said that Shaker “needs to be brought back to his family in London not only because it is the right judicial decision in the interest of justice, but also because there are credible medical reports that he is not terribly well, and therefore in his family, with their support structure in London, he will be able to make the necessary recovery.”

See below for RT’s brief news feature on the MPs’ visit, which includes comments from Jeremy Corbyn and Andrew Mitchell, as does the Sky News feature here.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Rights Groups Send An Open Letter to President Obama and Ashton Carter: Free the 57 Guantánamo Prisoners Approved for Release

Below is an open letter that has just been made available by 13 human rights organizations and lawyers’ groups calling for immediate action by President Obama and defense secretary Ashton Carter to secure the release of the 57 men still held at Guantánamo (out of the 122 men still held) who have been cleared for release — or approved for transfer, in the administration’s careful words. The signatories also call on the administration to try or release the other men, and to move towards the eventual closure of the prison, as President Obama first promised when he took office in January 2009.

The spur for the letter, which I initiated on behalf of Close Guantánamo and We Stand With Shaker, is the second anniversary of President Obama’s promise to resume releasing prisoners from Guantánamo, after Congress raised legislative obstacles, which he made in a major speech on national security issues on May 23, 2013.

Also of great relevance is the arrival in Washington, D.C. today of a British Parliamentary delegation calling for the release and return to the UK of one of the 57, Shaker Aamer, the last British resident in the prison. The four MPs involved are the Conservative MPs David Davis and Andrew Mitchell, and the Labour MPs Andy Slaughter and Jeremy Corbyn, who are part of the cross-party Shaker Aamer Parliamentary Group, and they will be meeting administration officials and Senators to try to secure a timeline for Shaker Aamer’s release.

It is also reassuring that, in the last few weeks, three prominent Democratic Senators — Patrick Leahy, Dianne Feinstein and Dick Durbin — have written to President Obama calling for the release of the 57 men, as has retired Supreme Court Justice John Paul Stevens, who, in a speech in Washington, D.C., also said they might be due compensation for their long ordeal.

Whilst it is commendable that 44 men have been freed since President Obama’s speech two years ago, all of the organizations and groups involved in the open letter are committed to seeing further action to release the other men approved for release — including Shaker Aamer, who could be returned to his family in the UK tomorrow — as swiftly as possible.

Those responsible for the letter are also concerned that reviews for the men not cleared for release and not facing trials — the Periodic Review Boards — take place as swiftly as possible, as it remains intolerable that, over 13 years since Guantánamo opened, the majority of those still held are still subjected to indefinite detention without charge or trial, something that no country that claims to respect the rule of law should tolerate.

Please also feel free to visit the Gitmo Clock website, established by Close Guantánamo after President Obama’s May 2013 speech, to mark how many days it is since the promise to resume releasing prisoners, and how many men have been freed.

An Open Letter to President Obama and Ashton Carter: Free the 57 Guantánamo Prisoners Approved for Transfer

Together the undersigned organizations call for the prison at Guantánamo Bay, Cuba, to be closed, and we ask President Obama and Defense Secretary Ashton Carter to swiftly transfer the 57 prisoners at Guantánamo who have already been cleared for transfer—the majority for over five years—and release or charge in a federal court those who have not been cleared for transfer.

May 23 marks the second anniversary of President Obama’s promise to resume releasing prisoners from Guantánamo, after Congress raised legislative obstacles, which he made during remarks at the National Defense University. The President’s promise was prompted in particular by a prison-wide hunger strike at Guantánamo, undertaken by men who—according to SOUTHCOM Commander General John Kelly—were “devastated” that the administration had “backed off” closing the prison.

Since that speech, 44 men have been freed. However, 122 men remain at Guantánamo, even though almost all of them have never been charged, let alone tried, for any crime. It is time for President Obama, and Defense Secretary Carter, to take action to transfer the 57 men still held who have already been approved to leave Guantánamo, and to release or charge in federal court those who remain.

Today, just days before the anniversary of President Obama’s promise, a delegation of British MPs is visiting Washington, D.C., to discuss the release of Shaker Aamer, one of the 57 and the last British resident in Guantánamo. This follows the creation of a cross-party Parliamentary Group, and a motion passed by the British Parliament in March, calling for his release and return to his family in the U.K., and a similar call made by Prime Minister David Cameron in a meeting with President Obama in January.

As well as calling for the transfer of the 57 men cleared for transfer, including Shaker Aamer, we also call on the administration to speed up the Periodic Review Boards (PRBs), designed to review the cases of the men who have not been cleared for transfer and are not facing trials. Since the PRBs began in November 2013, 14 men have been reviewed and nine have been approved for transfer. If the process does not speed up, it will take until January 2021 to complete the reviews—19 years after Guantánamo first opened.

The prison at Guantánamo is an expensive mistake that—according to national security officials, and President Obama—harms U.S. security interests. The U.S. government must act to close the prison as quickly as possible.

Amnesty International USA

Center for Constitutional Rights (CCR)

Close Guantánamo

Code Pink

Council on American Islamic Relations (CAIR)

National Religious Campaign Against Torture (NRCAT)

No More Guantánamos

Reprieve

September 11th Families for Peaceful Tomorrows

Torture Abolition and Survivors Support Coalition International (TASSC)

Veterans For Peace

We Stand With Shaker

Witness Against Torture

For further information, please contact Andy Worthington of Close Guantánamo

or Matt Hawthorne of the National Religious Campaign Against Torture (NRCAT).

For further information about the British Parliamentary delegation, please contact Katherine O’Shea of Reprieve.

Note: This article was published simultaneously here and on “Close Guantánamo.”

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Retired Justice John Paul Stevens Calls for Compensation for the 57 Cleared Guantánamo Prisoners Still Held

Last week, as three prominent Democratic Senators — Patrick Leahy, Dianne Feinstein and Dick Durbin — wrote to President Obama urging him to take urgent action to release the 57 men still held at Guantánamo who have been approved for release by high-level governmental review boards, and who, for the most part, have been waiting over five years to be freed, Justice John Paul Stevens, a Supreme Court Justice from 1975 until his retirement in 2010, made a speech at which he not only urged the release of these men, but also suggested that some of them may be due compensation for their long and ultimately unjustifiable ordeal. The 57 men make up almost half of the total of 122 men still held, and include, prominently, Shaker Aamer, the last British resident in the prison.

This is not, of course, the first time that former Justice Stevens, who is now 95 years old, has dealt with Guantánamo. When he retired, SCOTUSblog — the official Supreme Court blog — ran a series of articles about him, and in one of these articles, “Justice Stevens, Guantánamo, and the Rule of Law,” Daniel A. Farber, a law professor at Berkeley who clerked for him in 1976, explained the importance of his role in the 2004, 2006 and 2008 Supreme Court rulings that granted the prisoners habeas corpus rights (Rasul v. Bush in June 2004 and Boumediene v. Bush in June 2008, which I wrote about here), and that dealt with the legality — or rather the lack of it — of the military commission trial system at Guantánamo (Hamdan v. Rumsfeld in 2006).

Justice Stevens wrote the majority opinion in Rasul v. Bush, in which, almost two and a half years after Guantánamo opened, and after a long journey through the lower courts, the Supreme Court “held that the habeas statute covered Guantánamo,” and turned down the Bush administration’s argument that the prison was on foreign soil. Although Congress then passed legislation that purported to block the prisoners’ habeas rights, the ruling allowed lawyers to take on prisoners as clients, and to visit the prison, breaking through the veil of secrecy that had allowed torture and other forms of abuse to proceed unchecked.

Farber noted that “Justice Stevens’s Rasul opinion carefully dissected the precedents on habeas jurisdiction outside the United States,” adding, “The result was a pivotal ruling in terms of the rights of the Guantanamo detainees, who would otherwise have had no access to federal courts in which to challenge their treatment.” Moreover, in steering the court towards justice, Justice Stevens had had to deal with three prominent opponents, Justice Scalia, then-Chief Justice Rehnquist, and Justice Thomas, who all dissented from the majority opinion.

Farber’s article continued:

Two years later, in Hamdan v. Rumsfeld, Justice Stevens led the Court in overturning the Bush Administration’s efforts to evade legal restrictions. His opinion built on Rasul and also showed that the Court was not inclined to acquiesce to congressional or presidential efforts to limit its jurisdiction … In an opinion by Justice Stevens, the Court held that the President lacked the power to establish military tribunals under congressional enactments and under the Geneva Conventions. Specifically, the Court held that the military commission convened to try Salim Ahmed Hamdan, who allegedly served as Osama bin Laden’s driver and bodyguard, lacked the power to proceed because its structure and procedures violated both the Geneva Conventions and the Uniform Code of Military Justice.

Writing for the majority, Justice Stevens also reasoned that regardless of whether Hamdan had been charged with an offense generally cognizable by military commissions, the commission here did not have the authority to proceed because its procedures were illegal. Summarizing the Court’s holding, Justice Stevens said that “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the rule of law that prevails in this jurisdiction.”

Hamdan, specifically, led to Congress passing the Military Commissions Act of 2006, which purported to remove the right to habeas corpus for any “alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” This ruling built on the Detainee Treatment Act of 2005, which sought to prevent lawyers for the Guantánamo prisoners filing any new habeas petitions, and led to court challenges about whether or not the law applied retroactively to petitions filed between the passage of Rasul and the passage of the DTA.

As Farber pointed out, however, “Congress’s decision to step into the detainee issue did not deter the Court,” which “struck down the MCA’s jurisdiction-stripping provision in Boumediene v. Bush.” He added, In an opinion by Justice Kennedy, the Court held that the United States’ de facto sovereignty over Guantanamo was sufficient to bring it within the scope of the constitutional guarantee of habeas and that the MCA was therefore a violation of the Suspension Clause of the Constitution. Justice Stevens joined Justice Kennedy’s opinion and did not write separately. But as a concurrence by Justice Souter explained, Boumediene was a predictable extension of Justice Stevens’s opinion in Rasul.

Farber also wrote:

Technically, Rasul rested on statutory grounds whereas Boumediene rested on constitutional grounds, but the language in Rasul suggested fundamental objections to depriving detainees of habeas protections. Thus, as the concurring Justices said, “[N]o one who reads the Court’s opinion in Rasul could seriously doubt that the jurisdictional question must be answered the same way in purely constitutional cases, given the Court’s reliance on the historical background of habeas generally in answering the statutory question.”

Farber also noted that, in “a vehement if not intemperate dissent, Justice Scalia  played to the galleries with an angry proclamation that the Court’s decision would ‘almost certainly cause more Americans to be killed,’ and that the ‘Nation will live to regret what the Court has done today.'”

The result of Boumediene was not as Justice Scalia predicted, and, between October 2008 and May 2010, 32 men subsequently had their habeas petitions granted, and were freed. Unfortunately, the fearmongering and distortions aired by Justice Scalia were picked up by appeals court judges, who essentially shut down habeas for the prisoners in a series of rulings in 2010 and 2011 that overturned a number of successful petitions, and made sure that all new petitions were turned down.

Unfortunately, by this point, Justice Stevens had retired, and when these prisoners appealed to the Supreme Court, they were turned down. It is, I think, no exaggeration to say that, had Justice Stevens not retired, the Supreme Court might, once more, have addressed issues relating to the prisoners. As Daniel Farber noted, “Although the post-9/11 cases reflect special concerns relating to national security and presidential power, they also reflect preexisting disputes among the Justices about how to interpret statutes involving habeas jurisdiction. Justice Stevens’s support for habeas was not an ad hoc attempt to check the Bush Administration, but instead rested on a deeper commitment to ensuring access to the courts.”

In his speech in Washington, D.C. on May 4, which I have transcribed below, Justice Stevens began by speaking about the extent to which fear dictates important decision-making processes, and reminded his audience of how, in the Second World War, fear led to the mass internment of US citizens of Japanese ancestry.

Moving on to Guantánamo, Justice Stevens referred to two similar decisions: the decision to set up a prison at Guantánamo “to perform functions that either could be performed effectively on the mainland, or should not have been performed at all, and the later decision to prohibit the transfer of any person detained at Guantánamo to the United States.”

Justice Stevens added that, “Just as the Congress ultimately recognised that the fear-inspired decision made at the outset of that war was mistaken, in time our leaders will acknowledge that some or all of those 57 detainees are entitled to some sort of reparation,” a bold statement, given that one of the primary functions of government lawyers is to constantly find ways to prevent accountability for any government actions, in large part to prevent compensation claims. Nevertheless, I am delighted to hear such a prominent figure as Justice Stevens state that “some or all” of the 57 men approved for release are “entitled to some sort of reparation.”

Justice Stevens added that he was not suggesting that every Guantánamo prisoner is “entitled to compensation,” ruling out, for example, “those who have been convicted by a military commission.” However, as he added, those “who have been deemed not a security threat to the United States and have thereafter remained in custody for years are differently situated.”

In the rest of his speech, Justice Stevens discussed a more detailed legal issue — one “requiring government to provide appropriate remedies for constitutional wrongs committed by their agents,” and for both those agents and their superiors to be given “immunity from personal liability” when they undertake their public responsibilities.

I hope you find Justice Stevens’ speech interesting, and will share it if you do. With no one released from Guantánamo for over four months, the 57 men still held who have been approved for release need as much support as possible, and the release of this speech is timely, coming, as it did, around the same time that Senators Leahy, Feinstein and Durbin wrote to President Obama to call for the release of the 57 men approved for release but still held.

Justice John Paul Stevens (Ret.)
Lawyers for Civil Justice Membership Meeting

St. Regis Hotel, Washington, D.C., May 4, 2015
Reflections About the Sovereign’s Duty to Compensate Victims Harmed by Constitutional Violations

Fear plays a more important role in the process of making important decisions at the outset of international hostilities than is often recognized. That emotion sometimes leads to erroneous decisions that do far more harm than good. President Franklin D. Roosevelt’s decision to approve the mass relocation and internment of thousands of American citizens of Japanese ancestry during World War II is a vivid example of such a decision.

The hardships caused by that decision prompted Congress to enact the American Japanese Claims Act of 1948, permitting Japanese Americans to apply for compensation for property losses suffered as a result of their relocation. The $37 million disbursed pursuant to that statute, however, represented  only a small fraction of the harms suffered by the internees. It was not until 1976, when Gerald Ford acknowledged that the internment was “wrong” and a “national mistake” that “shall never be repeated” that most Americans became fully aware of the magnitude of the error. Congress subsequently enacted the Civil Liberties Act of 1988, which provided financial redress of $20,000 for each surviving internee, totaling $1.2 billion. The statute included an official apology acknowledging that “a grave injustice [had been] done to both citizens and permanent residents of Japanese ancestry.” A few years later Congress authorised the construction of the memorial on new jersey Avenue, a few blocks from the Capitol. That monument should serve as a reminder of the need to be especially vigilant when fear provides the primary motivation for an important decision.

Today I plan to say a few words about two such decisions: the decision to use facilities at the naval base in Guantánamo, Cuba to perform functions that either could be performed effectively on the mainland, or should not have been performed at all, and the later decision to prohibit the transfer of any person detained at Guantánamo to the United States. I shall also comment on a mistake made by the Supreme Court in a detention case, and propose a remedy that would minimize the risk of similar mistakes in future.

I

Since January 2002, when the government began using Guantánamo as a detention facility, almost 800 individuals have been detained there. About two-thirds of them were released when George W. Bush was President. Of the 242 prisoners being detained when Barack Obama took office, 115 more have been released, reducing the present population to just over 120. Both of those Presidents have stated publicly that the entire facility should be closed. That is also the view of Cliff Sloan, the State Department’s former envoy who wrote a persuasive op-ed piece in the New York Times four months ago in which he quoted a high ranking security official from one of our staunchest allies as stating: “The greatest single action the United States can take to fight terrorism is to close Guantánamo.” In that article, Cliff also described the cost of maintaining the facility as “eye-popping” — he estimated that it is around $3 million per detainee as compared with roughly $75,000 at a supermax prison in the United States. While I whole-heartedly agree with the view that we should put an end to our wasteful extravagance as promptly as possible, a sub-segment of the Guantánamo population is most directly relevant to a change in the law that I shall propose.

There are 50 detainees who were approved for transfer more than five years ago and an additional seven who were more recently approved. All of them received approval from six executive departments and agencies — the Department of Defense, the Joint Chiefs of Staff, the Director of National Intelligence, the Department of Justice, the Department of Homeland Security, and the Department of State. These six agencies agree that none of the 57 detainees poses a significant security threat to the United States. Despite concluding that these 57 individuals should be transferred out of Guantánamo, the government continues to claim legal authority to detain them as unprivileged enemy belligerents.

One of the reasons that they remain in custody is that Congress has enacted a flat ban on the transfer of any Guantánamo detainee to the United States for any reason whatsoever. Another reason is that Congress has imposed restrictions on the President ‘s ability to transfer detainees to foreign countries. Before such a transfer can occur, the Secretary of Defense must send congressional committees a letter thirty days beforehand explaining that the receiving country has taken or will take steps to “substantially mitigate the risk” that the individual will engage in hostilities against the United States. The Secretary must further explain why the transfer is in the national security interests of the United States. These onerous provisions have hindered the President’s ability to close Guantánamo, make no sense, and have no precedent in our history. Congress’s actions are even more irrational than the detention of Japanese American citizens during World War II.

Just as the Congress ultimately recognized that the fear-inspired decision made at the outset of that war was mistaken, in time our leaders will acknowledge that some or all of those 57 detainees are entitled to some sort of reparation. Of course, I by no means suggest that every Guantánamo detainee, such as those who have been convicted by a military commission, is entitled to compensation. But detainees who have been deemed not a security threat to the United States and have thereafter remained in custody for years are differently situated.

II

The Supreme Court decision that I have described as a mistake was Justice Kennedy’s opinion for the five-justice majority in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Iqbal was a citizen of Pakistan and a Muslim, who was arrested in the United States and detained by federal officials shortly after the terrorist attacks on September 11, 2001. He was found guilty of violations of our immigration laws and deported. Thereafter he brought suit against numerous federal officials alleging that he had been mistreated while he was incarcerated in a maximum security unit in Brooklyn. He was one of 184 “high interest” detainees suspected of complicity in the terrorist attacks. His complaint described unconstitutionally harsh treatment, motivated by hostility to his religion. Among the many officials who he named as defendants were John Ashcroft and Robert Mueller, who had been the Attorney General of the United States and Director of the Federal Bureau of Investigation while Iqbal was allegedly being abused. Assuming arguendo that Iqbal had been injured by unconstitutional conduct, Ashcroft and Mueller moved to dismiss the complaint against them on the ground that it had not adequately alleged their responsibility for the adoption of the policy. The District Court denied the motion and the Court of Appeals unanimously affirmed. The Supreme Court, however, reversed by a vote of five to four.

In his opinion for the majority, Justice Kennedy pointed out that Ashcroft and Mueller could not be held liable on a theory of respondeat superior; they were responsible for their own conduct, but not for that of their agents. And the opinion seems to suggest that the unconstitutionality of the policy depended on its having been motivated by hostility to Iqbal’s race or religion. The Court held that his allegations had not “nudged” his claims of invidious discrimination “across the line from conceivable to plausible.” In contrast, in his dissent Justice Souter discounted the importance of the motive for the policy; he reasoned that Ashcroft and Mueller would be liable if they knew about the alleged harsh policy and were “deliberately indifferent” to its provision. While I remain convinced by Justice Souter’s dissent, I think the majority’s decision may represent an understandable reluctance to impose personal liability on dedicated public officials attempting to minimize the risk of another terrorist attack.

If a policy of brutal interrogation of potential terrorists did violate their constitutional rights, the doctrine of respondeat superior should impose liability on the government for the wrongs committed by its agents. On the other hand, the law should also provide both those agents and their superiors with immunity from personal liability just as it provides such immunity to prosecutors who violate the Constitution. Even if Ashcroft and Mueller may have encouraged or tolerated improper efforts to obtain information about potential threats, we should presume that they were motivated by their interest in protecting the public from harm and not subject them to the risk of personal liability. If Iqbal’s allegations are true, the federal government, rather than individual executives, should make him whole.

III

The individuals who made the decision to intern loyal American citizens of Japanese ancestry made a terrible mistake but corrective action was, in due course, provided by the sovereign, not by any or all of the individuals responsible for the mistake. Mistakes that may have been made at Guantánamo may ultimately be redressed by the government without the costs and burdens associated with litigation and without imposing individual liability on everyone who violated the law. And one day we may have the wisdom to change the law in two constructive ways. First, recognizing respondeat superior as a basis for requiring government to provide appropriate remedies for constitutional wrongs committed by their agents. And second, providing immunity from personal liability for those agents and their superiors, who — like prosecutors — should be able to perform their public responsibilities fearlessly. If they violate the law when trying to do their jobs, the sovereign — not the person injured by their misconduct — should determine the appropriate sanction for their misconduct. And the sovereign, rather than its individual agents, should be responsible for providing an appropriate remedy for their wrongs.

Thank you for your attention.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Canadian Supreme Court Rules That Omar Khadr Was A Juvenile Prisoner, Not An Adult

How much money will the Canadian government spend in its futile effort to demonize Omar Khadr? A week after the former child prisoner — now 28 years old — was freed on bail after nearly 13 years behind bars (ten years in Guantánamo, and the rest in Canada), winning over numerous Canadians with his humility as he spoke in public for the first time, the Canadian government, which had unsuccessfully argued that releasing him on bail would damage its relations with the US, faced another humiliating court defeat, this time in Canada’s Supreme Court.

The government was claiming that Omar — just 15 years old when he was seized ate a firelight in Afghanistan, where he had been taken by his father — had been sentenced as an adult, not a juvenile. The intention was that, if Omar is to be returned to prison if his appeal against his conviction in the US fails (which, it should be noted, seems unlikely), he would be returned to a federal prison. The ruling followed an appeals court ruling in Omar’s favor last July, which I wrote about here.

However, the Supreme Court ruled that Omar had been sentenced as a juvenile, and that, if he were to be returned to prison, it would therefore be to a “provincial reformatory,” as the Globe and Mail described it.

In the Toronto Star‘s words, “The high court said Ottawa made a grave mistake in how it interprets the International Transfer of Offenders Act in Khadr’s case, and he should never have been placed in the federal penitentiary system, given the American eight-year sentence he faced. The judges said it is clear under Canadian law Khadr should have been placed “in a provincial correctional facility … for adults.”

Adding to the government’s humiliation, the court took “only a few minutes after the hearing ended to deliver its unanimous ruling from the bench,” as the Globe and Mail put it, adding, “Most rulings come several weeks after a case is heard.”

The Globe and Mail also noted that the symbolism of the ruling “looms larger than the practical effects,” adding, “The Canadian government was intent on demonstrating, as it has since the United States military captured Mr. Khadr on an Afghan battlefield when he was 15, and accused him of throwing a grenade that killed a soldier, that it believes he should be punished as severely as the law allows. And the Supreme Court said that the law is much less severe than the federal government thinks it is.”

As Chief Justice Beverley McLachlin explained, the court’s ruling was “a straightforward matter,” as the Globe and Mail described it, the reasoning being that a US military commission had “sentenced Mr. Khadr to eight years in prison for the war crime of murder, and the mandatory adult penalty for murder in Canada is life. Therefore it had to be a juvenile penalty.”

In contrast, the Canadian government had tried to argue that Khadr “had received five concurrent penalties of eight years for murder and other charges,” but the judges “expressed bafflement” at this argument. Justice Marshall Rothstein, described as a conservative member of the court, said, “We can’t slice and dice the eight years.”

This was Omar Khadr’s third victory in Canada’s Supreme Court. In 2008, after he had been held by the US for six years, the court “ruled unanimously that the government had to disclose all records of interviews conducted by Canadian officials with him, and information given to US authorities,” and in 2010 the court ruled that interrogations undertaken by Canadian agents at Guantánamo in 2003, when he was just 16, after three weeks of sleep deprivation, “offends the most basic Canadian standards about the treatment of detained youth suspects.”

Omar wasn’t present at the ruling, but his lawyers, Nathan Whitling and Dennis Edney, “rejoiced,” as the Toronto Star put it. Edney said he was surprised that the ruling had come so quickly. “Perhaps there’s a message there, less for myself and more for this government, that continues to waste taxpayers’ dollars persecuting my client,” he said.

He also said Khadr “has a new bike, hasn’t stopped cycling since he got it, and has been embraced by neighbours” in the community where he is living with Edney and his wife as part of his bail conditions.

The Toronto Star also noted that Edney “did not backtrack from his remarks last week that put the blame squarely on Prime Minister Stephen Harper for Khadr’s plight having been ‘abandoned’ in Guantánamo as a child.”

Edney said, “I’ve come to the conclusion, an honest conclusion felt by many, many Canadians throughout Canada, that Mr. Harper is a bigot, and Mr. Harper doesn’t like Muslims, and there’s evidence to show that.”

He added that Khadr is moving on with his life. “What happens next is he gets on with life,” he said, adding that Khadr “will go to university, and he will start to adjust and he will keep a low profile. He wants to be part of Canada and he doesn’t want the publicity.”

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

What Does It Say About the Tories That They Want to Scrap Human Rights Legislation?

After last Thursday’s General Election, as the Tories entrench themselves in power, without even the need of Lib Dem stooges to prop them up, we hear that the Cabinet spent a whole minute thumping the table at their first meeting, demonstrating a gracelessness and arrogance that is typical of the bullies, sociopaths and misfits who make up the upper echelons of the party.

Through our broken electoral system, the Tories have convinced themselves they have a mandate for even more of the destruction to the British state than they undertook over the last five years, propped up by the Lib Dems, even though the 50.9% of the seats that they took came with the support of just 24.4% of those eligible to vote.

The Tories’ relentless war on the British state and the British people

Since 2010, the Tories have been waging a relentless war on the British state, and on anyone who is not wealthy, privatising anything that was not already privatised, and using taxpayers’ money to make publicly owned enterprises more attractive to private buyers (as with the sell-off of the Royal Mail, for example), and also using taxpayers to fund huge vanity projects like the Olympics.

The Tories have also embarked on a disgusting assault on disabled people, via a callous review process designed to find them fit for work, which has resulted in numerous suicides, and they have also waged war on the unemployed, portraying them as feckless scroungers, even though there is only one job for every five people without jobs, and the only way out of this would be to set up a job creation scheme guaranteeing full employment (something that you will not find mentioned anywhere in current British discourse).

The assaults on the unemployed have come via the disgusting bedroom tax, removing what mansion-dwelling millionaires of the Tory cabinet regard as “spare” rooms in social housing, the benefit cap that has led to 50,000 families leaving London (to other places that could obviously do without the extra strain on their own resources) and various slave labour workfare schemes.

The Tories also passed legislation to privatise the NHS, tripled university tuition fees and persistently undermined state schools (despite almost all of them having been to private schools, and sending their own children there). They also presided over a horrendous housing bubble in London and the south east, and failed to do anything to rein in private landlords, who can charge what they can get away with without any restraints whatsoever on their behaviour.

The Tories also set their sights on the law, subjecting the legal system to cuts, and, in particular, slashing the legal aid budget, a move that not only empowers the rich to abuse the poor without fear of being challenged, but is also eating away at the very foundations of the British legal system, with trials already collapsing — allowing alleged criminals to walk free — because the barristers who are supposed to be involved can no longer afford to stay in business. In my work on behalf of Shaker Aamer, the last British resident in Guantánamo, I became involved with the lawyers’ campaign to save legal aid in February, a campaign that will, of course, be continuing as Michael Gove, the newly-appointed justice secretary, replaces Chris Grayling as the focus of well-deserved contempt.

The Tories’ assault on human rights

Allied to this, in many ways, is the Tories’ assault on on human rights. Last year, they sought to strip the citizenship of anyone of dual nationality that they regard as a threat (without any judicial process being involved), a chilling development that I wrote about here, here and here, and just before the election the Muslim community was alarmed by the passage of the Counter-Terrorism and Security Act 2015, rushed through amidst hysteria about ISIS, which, as Frances Webber of the Institute of Race Relations explained, applies “immigration policing measures — including border controls, carrier sanctions, refusal of entry, conditions of residence, the outsourcing of controls to local authorities, colleges and universities and other public bodies — to the national security policing of both British and foreign citizens, while at the same time doing away with or diluting judicial safeguards.”

Webber added, “[T]his national security policing is policing of thoughts, intentions, opinions and attitudes, in a climate in which the Muslim community is by definition suspect. Inevitably, the brunt of this policing will be borne by the Muslim community. Because immigration controls are the vehicle, more British Muslims will find the rights of citizenship increasingly precarious and contingent.”

Since their electoral victory last Thursday, the Tories have already launched new attacks on important safeguards that protect us from executive overreach, immediately launching yet another counter-terrorism bill containing proposals for “extremism disruption orders,” which were formulated by an extremism task force that was set up by David Cameron. First proposed by Theresa May at last year’s Conservative Party Conference, the plans were greeted with dismay by the Liberal Democrats, who vetoed them in March, but they were also opposed by senior Tories, as the Guardian reported yesterday:

When the home secretary showcased [the proposals] in her party conference speech in October Dominic Raab, then a backbench MP and now a justice minister, described them as “eroding basic principles of freedom that won’t make us safer”. He even suggested that her extremism disruption orders could be abused to slap down “monarchists, communists and even Christians objecting to gay marriage”’.

He was not alone. Senior Tories such as Lord Lamont and John Selwyn Gummer, or Lord Deben as he is now known, voiced serious free speech concerns over her plans for ministers to order universities to ban extremist speakers from campuses.

But opposition to her plans also ran right across government. The Financial Times reported that no fewer than seven Conservative cabinet ministers had by March raised objections to some of the proposals which are now to be fast-tracked in the Queen’s speech. Some of those ministers, such as Greg Clark, Nicky Morgan, Theresa Villiers and Sajid Javid are still in the cabinet.

After Theresa May first proposed the plans, the Guardian noted in an editorial:

The insuperable problem with these plans, as written, is that their net could potentially catch many more political activists than those about whom Mrs May complains. A formulation to prevent “harmful activities” is one such example. A draft which penalises “threats to the functioning of democracy” is another. The creation of “alarm” or “distress” is another. All are very low thresholds. Much too low. They might help stir the very radicalism they are designed to prevent. They are not just illiberal but counterproductive. They need to be rethought.

Shelved for now are other outrageous plans — a proposed “communications data bill,” more commonly known as the snoopers’ charter, which deals with the broad retention of records of phone calls, emails and other data, and which, of course, is alarming to many people after Edward Snowden’s revelations about government spying in the US and the UK (via the NSA and GCHQ).

The proposal to scrap the Human Rights Act

However, what is being pushed forward without hesitation is the proposal to scrap the Human Right Act and replace it with a so-called British Bill of Rights, an idiotic bit of knee-jerk populism that doesn’t even make sense, and will, hopefully, be unworkable.

The proposals are portrayed by the Tories as necessary to stop the UK from having its hands tied in dealing with foreign terror suspects, but this is a misunderstanding of what the Human Rights Act is, and, more fundamentally, its relation to the European Convention on Human Rights.

The European Convention on Human Rights, written in 1949-50, and with a prominent role in its drafting taken by the British Conservative MP and lawyer Sir David Maxwell-Fyfe, who had been a prosecutor at the Nuremberg Trials, drew on the Universal Declaration of Human Rights, ratified by the United Nations in 1948, and was designed to protect human rights and fundamental freedoms in Europe.

The Convention was a key founding document of the Council of Europe, and led to the establishment of the European Court of Human Rights. Established in 1949, the Council of Europe promotes co-operation between European countries in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation. Initially formed of ten countries, including the UK, it now has 47 member states, representing 820 million people in total.

The Convention came into force in 1953, and its ratification was — and still is — required for all members of the Council of Europe.

In addition, the Council of Europe is, it should be noted, an independent body, and is not to be confused with the European Union, although membership of the Council of Europe is a requirement for EU member states.

The Human Rights Act came many years after the creation of the Convention, although its origins were not contentious. As Bella Sankey, Liberty’s director of policy, explained in an article for the Huffington Post, “it was passed in 1998 with overwhelming cross-party support and Tory leadership endorsement,” and “was a long-held ambition of the Society of Conservative Lawyers.”

Moreover, as Keir Starmer, the former Director of Public Prosecutions, and the newly-elected Labour MP for Camden, explained in an article for the Guardian:

In the aftermath of the second world war, [when] nations came together to say “never again”, [t]hey established the United Nations and agreed a simple set of universal standards of decency for mankind to cling to: the Universal Declaration of Human Rights. These standards were intended to protect the individual from the state, to uphold the rights of minorities and to provide support for the vulnerable.

The idea was simple; these standards would first be enshrined in regional treaties such as the European Convention on Human Rights (ECHR) and then be given legal effect in every country. In the UK this was achieved when Labour enacted the Human Rights Act (HRA) in 1998.

As Starmer also noted:

[T]he HRA has heralded a new approach to the protection of the most vulnerable in our society, including child victims of trafficking, women subject to domestic and sexual violence, those with disabilities and victims of crime. After many years of struggling to be heard, these individuals now have not only a voice, but a right to be protected. The Tory plans to repeal the HRA, together with the restricted access to our courts already brought about by the restriction on judicial review introduced by Gove’s predecessor, Chris Grayling, will silence the vulnerable and leave great swaths of executive action unchecked and unaccountable.

The idiocy of the Tories’ plans was well-explained in an article for the Daily Telegraph by the barrister Matthew Scott, who stated that, in his new job, Gove “faces formidable problems: prisons groaning at the seams with frequently suicidal inmates, civil and criminal legal aid in a state of near collapse, criminal barristers threatening to strike, and many demoralised police officers wishing that they were allowed to do so.” He added, “Intractable though these problems may be, they are insignificant compared to those that face Mr. Gove should he try to implement one of the few concrete promises included within the Conservative Manifesto: repealing the Human Rights Act.”

Scott noted that the manifesto promise to scrap the HRA and replace it with a British Bill of Rights is frustratingly vague. It promises to “remain faithful to the basic principles of human rights,” and singles out the right to a fair trial as a “basic right” along with “the right to life.”

As he also noted, however:

There are other rights which any Bill faithful to the “basic principles of human rights” would surely have to contain: freedom from torture, freedom of religion, freedom of expression and, one would have thought, a right to a private and family life. Indeed, it is difficult to think of any of the rights in the original European Convention that could be excluded.

At this point, it becomes apparent that all this is about the perceived “rights” of foreign terror suspects. As the manifesto explains, a British Bill of Rights will “stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.”

Scott responded to this by stating:

But what is a “spurious human rights argument?” Abu Qatada – the particular bête noire of the last two Governments — was able to argue that he should not be deported to face a trial which would be unfair because he would face evidence obtained under torture. It was hardly a “spurious” argument, and presumably he would still have been able to make it, and quite possibly succeed under a British Bill of Rights.

Even if Mr Gove succeeds in passing a British Bill of Rights, it won’t necessarily help in a similar case, should it arise in the future. One of the reasons Abu Qatada was able to avoid deportation as long as he did was that after losing in the British courts he took his case to the European Court of Human Rights in Strasbourg, which held that to deport him at that point would breach his right to a fair trial.

His appeal to Strasbourg had nothing to do with the Human Rights Act; his right to appeal derived from Britain’s adherence to the European Convention. Once the European Court had ruled in his favour the British Government could not deport him without being in breach of its Convention obligations. The same problem would arise again and again if the Human Rights Act were repealed. Unless the Council of Europe agreed to amend the Convention, the only way out of that would be for Britain to withdraw from it altogether.

That is possible, as Scott explained, because withdrawal, or “denunciation” in the Convention’s words, “is legally possible on giving six months notice” (although Scott notes that “a significant number of Conservative MPs led by the former Attorney General Dominic Grieve would oppose it”). However, as he also notes, “it would not be an easy option.” Because it was not mentioned in the manifesto, the House of Lords “would be perfectly within its constitutional rights to obstruct and delay.”

In any case, withdrawal from the Convention would mean withdrawing from the Council of Europe, and, as noted above, EU membership requires CoE membership. Are we to see a ridiculous situation whereby a referendum on leaving Europe, which David Cameron doesn’t even want, goes ahead and is promoted by the Tories, with ruinous effects on British business, simply because the Tories don’t like some of the minor constraints on their actions that are enshrined in human rights legislation?

To understand quite how ridiculous this is, it’s worth pointing out how the current situation actually gives the UK more, not less influence over the European Court of Human Rights — providing yet more confirmation that the Tories’ plans are idiotic, designed to appeal to legally illiterate right-wingers, and demonstrating how much this particular batch of Tories hates being told what it cannot do.

As Bella Sankey put it:

The case for repeal appears to hinge on the popular deceit that the HRA gives Strasbourg judges the power to order British ones around. “We cannot go on with a situation where crucial decisions about how this country is run and how we protect our citizens are taken by the European Court of Human Rights (ECtHR),” implored then Justice Secretary Chris Grayling in October.

A slight issue with this: it’s rubbish. Under the HRA, Britain’s courts are only required to “take account” of ECtHR judgments, not follow them. British courts regularly depart from Strasbourg jurisprudence to take account of UK laws, traditions and customs, and the Supreme Court is already the ultimate arbiter of human rights cases here. In fact, when the Human Rights Bill was passing through Parliament, the Conservatives tried to amend it to say British Courts should be bound by Strasbourg — a proposal rejected by Parliament.

The Tories say the Bill will restore “parliamentary sovereignty” — but the HRA has increased British sovereignty. Pre-HRA, UK cases were argued directly in Strasbourg without any judgment from a UK court. Post-HRA, British judges rule on all human rights claims arising in the UK and influence Strasbourg jurisprudence in cases that proceed there. Introducing the Bill will increase Strasbourg’s supervision of the UK, making it more like a Court of first instance once again.

Under the Bill, people will still be able to take claims to Strasbourg once domestic litigation is exhausted. Axing our HRA will lead to an increase in cases going there, resulting in more negative rulings against the UK — and decade-long waits for those seeking justice.

Unless, of course, we withdraw from the Convention, and from the EU — standing alone in Europe with Belarus, a dictatorship that is the only other country that has not signed up to the Convention.

In addition, as Matthew Scott also explained, “withdrawal would have potential consequences on the devolution settlements in Scotland, Wales and Northern Ireland. The Acts of Parliament giving power to the Scottish Parliament, and the Welsh Assembly presuppose Britain’s membership of the Convention, as does the 1998 Belfast Good Friday Agreement. If Britain left the Convention, these would have to be amended.”

Withdrawing Britain from the Convention, therefore, “would for all practical purposes require the consent of each of the separate nations of the UK,” and it is already clear that Scotland will resist the Tories’ plans, and that Wales and Northern Ireland will too.

Everything about the new Tory government suggests that they will resist the truth about their plans — that they are unworkable and must be dropped — until they are forced to do so. I hope they end up belittled and humiliated, as they continue to try to belittle the institutions and laws that protect us, and to humiliate all but their own narrow band of supporters.

Defeating the Tories on this is hugely important, as the heading of my article is meant to explain. Just stand back and imagine what message it sends to the world when the UK, which created habeas corpus 800 years ago, says that it wants to get rid of human rights legislation. Is that the point of view of a responsible nation that believes that adhering to the rule of law empowers all of us, or is it the point of view of a would-be dictatorship?

In conclusion, please sign the 38 Degrees petition to save the Human Rights Act, which currently has over 150,000 signatures. You can, if you want, also sign the Change.org petition calling for “a national referendum on the planned abolition of the Human Rights Act,” which currently has over 200,000 signatures, although asking for a referendum is not my first option. Instead, I’d like the Tories to scrap their plans as unworkable — and fundamentally wrong.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Senators Leahy, Feinstein and Durbin Tell Obama to Free 57 Cleared Guantánamo Prisoners “As Quickly As Possible”

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012 with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

It’s now nearly five months since the last prisoners were released from Guantánamo, even though 57 of the 122 men still held have been approved for release from the prison, the majority since President Obama’s high-level, inter-agency Guantánamo Review Task Force issued its recommendations about the disposition of the remaining prisoners in January 2010.

As any decent person would agree, still holding men five years after you said you no longer wanted to hold them is a particularly offensive betrayal of any notion that you believe in justice and fairness.

President Obama released dozens of prisoners — 66 in total — from when he took office in January 2009 until September 2010, at which point restrictions on the release of prisoners, which were cynically imposed by Congress, made it more difficult. This was not because the administration was unable to release prisoners, but because the process of certifying to Congress that it was safe to do so, which were the conditions imposed by lawmakers, made the release of prisoners much more politically sensitive than it should have been.

In 2013, in despair at ever being released, or being delivered any sort of justice, the majority of the prisoners embarked on a prison-wide hunger strike, which finally awoke widespread domestic and international criticism of the president ‘s inertia.

In response, President Obama delivered a major speech on national security issues in which he promised to resume releasing prisoners from Guantánamo, and since that time 44 men have been freed, but since January, as I noted at the start of this article, no one has been released.

On April 22, the Washington Post published a detailed article suggesting that ten men would be released by summer — including Shaker Aamer, the last British resident in the prison — and that the administration was hoping to release the rest of the prisoners approved for release by the end of the year, and closing the prison before the end of the Obama presidency by, if necessary, unilaterally moving the remaining prisoners to the US mainland.

As I explained at the time, however, “Realistically … it might be wisest to view these suggestions as the administration stating its best-case scenario,” although here at “Close Guantánamo” we remain hopeful that the first of these ams — the release of ten men by summer — will still happen. This involves the new defense secretary Ashton Carter authorizing the release of the first prisoners under his watch, but that should not really be difficult, because all the men approved for release have only been approved for release after a rigorous inter-agency process.

Here at “Close Guantánamo” we also note with approval that, last week, three prominent Democratic Senators — Patrick Leahy, Dianne Feinstein and Dick Durbin — sent a letter to President Obama urging him to resume releasing prisoners, and calling the failure to do so “an especially troubling lapse in light of how little time is left in your administration,” adding, “Transferring the 57 cleared detainees as quickly as possible will be a momentous step toward closing Guantánamo.”

The Senators also urge the president to speed up the Periodic Review Board process — the process for looking at whether it is safe to release the 55 other prisoners who have not already been recommended for release, but who are not amongst the ten facing trials. We agree, and have said so frequently during our in-depth coverage of the PRBs (see our most recent articles about the PRBs).

The Senators also note how claims relating to the alleged recidivism of former prisoners reflect favorably on the Obama administration, and reported incidences of released prisoners “returning to the battlefield” have “dramatically decreased since you took office.” Here at “Close Guantánamo” we are deeply suspicious of the unsubstantiated claims about prisoner recidivism that emerge from the office of the Director of National Intelligence twice a year, but we agree that releases under President Obama have been less problematical than some of those under President Bush.

And finally, we agree with the Senators that the cost of housing men at Guantánamo ought not to be considered tolerable, as it now costs up to $3.3 million a year to hold each prisoner, compared to $79,000 per prisoner per year in a federal Supermax prison. The $188 million it costs every year to hold men at Guantánamo who have been cleared for release is a particularly unjustifiable expense, but even for those not cleared for release the cost of imprisonment at Guantánamo ought to be considered absurdly expensive by anyone capable of examining the situation objectively.

In their closing words, the Senators also note, correctly, how they “have worked to ease unduly burdensome detainee transfer restrictions,” and ask the president to “utilise current authorities to expedite the transfer of all cleared detainees and accelerate the Periodic Review Board process to determine if additional detainees can be transferred.” In conclusion they state, “These are two commonsense steps that you can take immediately to bring America closer to our shared aim of shuttering this unnecessary prison, a goal you articulated on your second day in office.”

The letter is cross-posted below, and if you would be so kind as to add your voice to those of Senators Leahy, Feinstein and Durbin, you can phone the White House on 202-456-1111 or 202-456-1414 or submit a comment online.

Letter to President Obama Calling for the Release of Prisoners from Guantánamo

May 4, 2015

President Barack Obama

The White House

1600 Pennsylvania Avenue, NW

Washington, D.C. 20500

Dear President Obama:

On January 22, 2009, you signed a historic executive order to restore America’s role as a leader on human rights by requiring the detention facility at Guantánamo Bay to be closed within one year. Unfortunately, more than six years later, it remains open at great financial cost and harm to the national security of the United States. At an event earlier this year in Cleveland, you stated that if you could go back to your first day in office, you would immediately close the detention facility at Guantánamo. Although onerous restrictions imposed by Congress have hindered efforts to close the detention facility, we urge you to immediately take meaningful action in order to end this unfortunate chapter in our nation’s history before you leave office. With only 20 months remaining in your Presidency, time is of the essence.

Currently, of the 122 detainees who remain at Guantánamo, nearly half have been unanimously cleared for transfer to either their home countries or third countries, through a rigorous process that requires the unanimous agreement of the Secretary of State, Secretary of Homeland Security, Director of National Intelligence, Attorney General, Secretary of Defense, and the Chairman of the Joint Chiefs. Many of these detainees were approved for transfer years ago and their continued indefinite detention serves as a propaganda tool for terrorists and harms our national security. There have been no transfers of Guantánamo detainees since January 15, an especially troubling lapse in light of how little time is left in your administration. Transferring the 57 cleared detainees as quickly as possible will be a momentous step toward closing Guantánamo.

For those detainees who have not been cleared for transfer or charged with a crime, we urge you to expedite and prioritize hearings before the Periodic Review Board (PRB), as required by Executive Order 13567. It is important that all eligible detainees receive a review by this interagency panel as soon as possible to determine if their continued law of war detention is necessary. Of the 14 PRB determinations that have been made public, nine detainees have had their status changed to become eligible for transfer. At the current pace, PRBs for all remaining eligible detainees will not take place until the end of the decade. Accelerating the PRB process will help to determine whether additional detainees can be transferred from Guantánamo.

While entirely eliminating the risk of detainee recidivism is impossible, the enhanced review process your administration instituted has helped to mitigate the risk that detainees will re-engage in terrorist activities. Statistics released by the Office of the Director of National Intelligence in March confirm that instances of confirmed and suspected detainee recidivism have both dramatically decreased since you took office. As a result of this more rigorous process, less than six percent of detainees transferred since 2009 have been confirmed of re-engaging and less than one percent of detainees have been suspected of re-engaging in terrorist activities. This marked improvement over the record of the prior administration demonstrates that it is possible to transfer detainees while also protecting our national security.

Maintaining the status quo at Guantánamo is reckless fiscal policy. At a time when budgets are tight, the detention facility is costing our country billions of dollars. Each detainee held at Guantánamo costs the government as much as $3.3 million annually and that figure will only continue to rise as the detainee population ages. By comparison, it costs approximately $79,000 to house a person in the most secure federal Supermax prison in America. We should not squander precious manpower and resources holding detainees who have been approved for transfer.

At the request of your administration, we have worked to ease unduly burdensome detainee transfer restrictions, and we ask that you utilize current authorities to expedite the transfer of all cleared detainees and accelerate the Periodic Review Board process to determine if additional detainees can be transferred. These are two commonsense steps that you can take immediately to bring America closer to our shared aim of shuttering this unnecessary prison, a goal you articulated on your second day in office.

Patrick Leahy

United States Senator

Dianne Feinstein

United States Senator

Richard Durbin

United States Senator

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.