Guantánamo Hunger Strike: Obama Administration Hints at Progress on Releasing Yemenis

100 days after the majority of the remaining 166 prisoners in Guantánamo embarked on a hunger strike, and after a weekend of actions in the US, the UK and elsewhere to highlight the continuing injustice of the prison, the world is waiting — again — to hear from President Obama.

As news of the hunger strike filtered out of the prison in late February, and, throughout March, spread like wildfire throughout the world’s media, attracting criticism of the administration from the International Committee of the Red Cross and the United Nations, as well as critical coverage in the US, President Obama remained silent.

Three weeks ago, President Obama finally broke his silence, delivering a speech at a news conference in which, as I explained here, he eloquently explained why Guantánamo is such an abomination, but failed to accept his own responsibility for the prison’s continued existence, blaming Congress and claiming that all he could do was to go back to lawmakers to seek their cooperation.

Whilst it is certainly true that lawmakers have raised huge obstacles to prevent the release of prisoners and the closure of the prison, it is also true that President Obama personally imposed a ban on releasing any of the cleared Yemenis who make up 56 of the 86 men still held whose release was recommended by the President’s own inter-agency task force back in January 2010, following a failed airline bomb plot on Christmas Day 2009, which was hatched in Yemen.

In addition, although lawmakers have imposed a seemingly insurmountable restriction on the release of prisoners in the last two National Defense Authorization Acts, at the end of 2011 and 2012 — insisting that the Secretary of Defense certifies that any released prisoners will not be able to pose a threat to the US in future — there is a waiver in the legislation, which allows the administration to bypass Congress if officials regard it as being “in the national security interests of the United States.”

In the NDAA (following previous successful actions to stop prisoners from being transferred to the US mainland for any reason, even to face federal court trials), lawmakers enacted legislation to prevent prisoners from being released if there was a single claim that anyone previously transferred to their home country “had subsequently engaged in any terrorist activity” (making the country in question a “recidivist country”) and also banning the release of prisoners to any other country unless the Secretary of Defense issued a certification personally “ensur[ing] that the individual [transferred] cannot engage or reengage in any terrorist activity.”

The waiver — allowing the release of prisoners if the President and the Secretary of Defense regard it as being “in the national security interests of the United States” — was introduced specifically by Sen. Carl Levin, the chair of the Senate Armed Services Committee, who, on May 9, sent a letter to President Obama, via his legal counsel, reminding him of this fact.

“[M]ore than a year ago,” Sen. Levin wrote, “I successfully fought for a national security waiver that provides a clear route for the transfer of detainees to third countries in appropriate cases, i.e., to make sure the certification requirements do not constitute an effective prohibition.”

Sen. Levin added, “I urge the President to appoint an official inside the White House to spearhead an interagency effort to determine which of the more than eighty detainees who have already been cleared for transfer by the Guantanamo Detainee Review Task Force meet the certification (and waiver) requirements, and to actively work for their transfer. High level leadership on detainee transfers is critical to advancing the goal of closing GITMO.”

On Thursday, in a major speech at the National Defense University, President Obama will lay out his plans for Guantánamo in a speech that, as the Washington Post described it, will explain “how he intends to bring his counterterrorism policies, including the drone program and the military prison at Guantánamo Bay, Cuba, in line with the legal framework he promised after taking office.”

On Saturday, a White House official specifically told the Post that President Obama will “discuss our broad counterterrorism policy, including our military, diplomatic, intelligence and legal efforts.,” and that, as part of that discussion, “he will review our detention policy and efforts to close the detention facility at Guantánamo Bay.”

Whilst it would be unwise to try and guess what the President will say, it is to be hoped that he will have taken Sen Levin’s advice about the need to appoint a high-level official to deal with Guantánamo, and the need to release cleared prisoners.

Similar encouragement was provided last month by Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, who wrote to National Security Director Tom Donilon on April 25 urging the Obama administration to “renew its efforts to transfer out the 86 detainees at the Guantanamo Bay who were cleared for transfer by the Executive Branch’s interagency Guantanamo Review Task Force over three years ago,” and also called for an official to be appointed “with the specific responsibility to achieve the conditions necessary to close Guantanamo.”

One reason to be cautiously optimistic is that, last Tuesday, Attorney General Eric Holder told a news conference that, as Reuters reported it, the government “intends to revive a vacant position coordinating policy” for the prison at Guantánamo Bay. “We’re in the process of working on that now. We’re looking at candidates,” he said.

The day after, Eric Holder went further. As the Guardian explained, he “hinted” that the Obama administration “may be planning to act on Yemeni prisoners held at Guantánamo Bay.” This, the Guardian noted, “would make a big dent in the overall number of Guantánamo detainees,” adding, “The failure to free Guantánamo prisoners who have been cleared for release is one of the main reasons for the continuing hunger strike.”

In a hearing on Capitol Hill on May 15, when Holder was asked about Guantánamo, he stated that “his preference remained to close the facility but that Congress had blocked that option” — the standard response that shields the administration from blame — but, significantly, he also “said the Obama administration was looking at sending detainees who have been cleared back to their own countries and declared that the block on Yemenis was under review.”

This welcome piece of news suggests a U-turn on the moratorium on releasing Yemenis, issued three years and four months ago, which officials said, just three weeks ago, remains in place, even though it is one of the most disgraceful aspects of Obama’s detention policy at Guantánamo — holding men cleared for release by his own task force simply on the basis that their home country is regarded as dangerous, and imprisoning them indefinitely to prevent what they may do at some point in future.

Last weekend, Eric Holder also criticized Congress for blocking the transfer of prisoners from Guantánamo to the US to face trials, perhaps indicating a move to abandon military commissions (recently discredited by Conservative judges in the Court of Appeals in Washington D.C.) and push for federal court trials for the small number of prisoners who can be charged with crimes. Holder was a passionate advocate of federal court trials for the alleged 9/11 co-conspirators and a few other other alleged terrorists held at Guantánamo until the plan was derailed in 2011, when the President bowed to pressure and dropped the planned 9/11 trial in New York.

Delivering a commencement address at the University of California Berkeley School of Law last weekend, Holder criticized lawmakers who “placed unwise and unwarranted restrictions on where certain detainees could be housed, charged and prosecuted” He added, “Let me be clear: those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion. They are simply wrong.”

Note: As we wait for President Obama’s speech, please keep up the pressure on the administration. Sign and share the petition on Change.org, which already has over 200,000 signatures. Please also call the White House (202-456-1111, 202-456-1414), US Southern Command (305-437-1213) and the Department of Defense (703-571-3343). You can say, “I support closing the prison at Guantánamo Bay. President Obama can and should resume transfers, today, for the 86 cleared prisoners who are still held. Indefinite detention without charge or trial is a human rights violation.” You can also call or e-mail your congressperson and senator to ask them to support swift executive action to close Guantánamo, and you can also send a letter to a prisoner.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — 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 four-part definitive Guantánamo prisoner list, “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 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.