by Lisa Hajjar
On March 7, when president Barack Obama signed an executive order (E0) that varnishes the framework of indefinite detention without trial, he put the final nail in the coffin of his day-two promise to close Guantanamo.
Those detainees who, in the government's view, can not be tried but are too dangerous to release will continue to be subject to "law of war detention" because they are deemed by official reviewers "in effect, [to] remain at war with the United States".
This means that Guantanamo can remain open as long as the "war on terror" continues. Not only is there no end in sight, no one is even speculating about what the end might look like.
This executive order, as well as the recent announcement that military commission trials will resume, was no surprise.
In his 21 May 2009 address from the National Archives, Obama explained that his administration had inherited a "legal mess" from the previous administration and that the challenges of dealing with detainees were more difficult than expected.
In that speech, he explained that, contrary to his earlier promises and condemnations, military commissions were indispensable and indefinite detention may be necessary. What he meant but did not say was "politically necessary" to sustain his post-partisan aspirations.
One aspect of the legal mess, which finds no mention in the EO, is the fact that some detainees – for example, Muhammad al-Qahtani, alleged to be the "20th hijacker" – can not be tried because they were so badly tortured.
Obama's endorsement of indefinite detention follows the course charted by former president George W. Bush, who claimed that Congress had (implicitly) endorsed the option when it passed the Authorisation To Use Military Force in the immediate aftermath of 9/11.
Certainly, the permanence of Guantanamo is buttressed by strong bi-partisan opposition to closure.
Congress has passed legislation that blocks funding and bars any relocation of detainees to the US for any purpose, including trial in federal court.
Some members of Congress have reacted to false information and inflated estimates about the recidivism of released detainees, putting forth legislation that would make future releases even harder. Under Obama, 67 people were released, and 532 were released during the Bush administration.
But none of these factors explains why the Obama administration is appealing habeas cases won by some detainees. Any appeals in which the government prevails would, presumably, cast those people into the category of indefinite detainees.
Of the 172 people who remain in the prison camp, 47 have been designated as indefinitely detainable. The 48th, Awal Gul, was repatriated from Guantanamo to his native Afghanistan in a coffin after dying of a heart attack on February 2.
The petri dish of detention
Five Chinese Uighers, out of an original population of 22, remain at Guantanamo. They were cleared for release years ago when it was determined that they had no ties to terrorism.
Like so many other non-Afghans who were swept up in Afghanistan and shipped to Guantanamo, simply being out-of-place made them appear suspicious. The Uighers were captured as they were en route home from pilgrimage in Mecca.
The problem of where to send the Uighers after they were cleared for release proved particularly gnarly. They could not be repatriated to their own homeland because China would imprison them as ethnic dissidents. Seventeen were dispersed to Albania, Bermuda, Palau, and Switzerland.
When Obama took office, he formed a task force to plan the closure of the facility, headed by now-former White House counsel Greg Craig.
Operating on the hope-and-change assumption that the administration was committed to closure, Craig maintained that it would be easier to persuade other countries to accept prisoners cleared for release if the US also accepted some.
As some WikiLeaks documents have revealed, foreign governments loathed to help solve the Guantanamo problem unless the US government was willing to resettle some cleared detainees, too.
Craig's team proposed to bring two Uighers stateside. When word of these plans leaked, critics accused the administration of putting American safety at risk by bringing "terrorists" into the country.
Now-former White House chief of staff Rahm Emmanual decried the political heat generated by the idea. Shortly thereafter Craig resigned.
The five Uighers for whom no foreign sanctuary could be found remain in a hazy state that purportedly lies somewhere between military detention and freedom. The fate of these men illuminates one petri dish in the grim experiment that is Guantanamo.
Experimenting in unfreedom
In total, 89 prisoners have been approved for transfer because it has been determined that they are "no longer an unprivileged enemy combatant".
The "no longer" denotes a stubborn refusal on the part of the US government to acknowledge mistakes, a whitewash of the deeply flawed process that landed 779 people in Guantanamo since the prison opened in January 2002.
Of the cleared prisoners, 58 are Yemenis. In early 2010 Obama froze repatriations to Yemen, declaring that the situation there is too "unsettled".
This decree came in the wake of the 2009 Christmas day underpants bombing attempt by Umar Farouk Abdulmutallab, a Nigerian who allegedly was inspired by the Yemen-based US citizen Anwar al-Awlaki of AQAP (al-Qaeda in the Arabian Peninsula) notoriety.
Hunger striking is one of the only means available to detainees to protest their unjust and endless predicament.
In the past, the military told journalists how many detainees at any given time were participating in the hunger strike.
Under Obama, that information is no longer provided, so it is impossible to know how many currently are force fed Ensure through nasal tubes to prevent them from starving themselves to death.
The only way out
These days, it seems, the best way to get out of Guantanamo – other than to die – is to plead guilty to charges.
Three of the four prisoners who have been convicted by military commissions, including Canadian "child soldier" Omar Khadr, are serving sentences with finite ends arranged through plea bargains.
The fourth, Ali al-Bahlul, who refused to deal or even to allow his lawyer to defend him at trial, got a life sentence.
Even if all other circumstances impeding closure change in the future, as long as the legislation barring prisoners from being relocated to the US remains on the books, Guantanamo's lifespan will be at least as long as al-Bahlul's.
Another 32 detainees have been referred for prosecution, which means that they face the prospect of being charged and tried. However, when that will happen remains an open question.
About a dozen cases have been in the works for years, but no new cases have hit the military commission docket.
The fate of the five prisoners accused of being 9/11 conspirators, including self-declared "mastermind" Khalid Sheikh Muhammad, is even more uncertain. Attorney general Eric Holder had announced in November 2009 that they would be tried in New York – "the scene of the crime".
But the political backlash to that announcement was fierce, and indeed was one motivating factor in the passage of legislation barring federal trials.
Yet neither Holder nor Obama has relinquished the possibility of a federal trial for the accused 9/11 conspirators.
Experimenting with the law
Guantanamo is the most visible piece of a bigger legal mess that the Obama administration inherited from its predecessor. Many military law experts regard the entire post-9/11 legal edifice as flimsy.
In 2001, Bush administration officials reinterpreted the laws of war in order to assert that people's status as captured constitutes the basis for the president's right to declare them "unlawful enemy combatants" and detain them, despite that many who ended up in Guantanamo were arrested far from any battlefield and were not combatants by any conventional understanding of the law.
Obama, acknowledging this particular problem, made a semantic modification by changing the term to "unprivileged enemy belligerent".
But this had no practical effect of mending this legal fabrication. On the contrary, the EO for indefinite detention indicates that the problem has been reinforced.
The government also invented new war crimes in order to create a new right to charge and prosecute people in military commissions. Any alleged criminal activity committed by a person with the status of being in US custody at Guantanamo was redefined as a war crime.
The offences included after 9/11 in the war crimes category (if perpetrated by America's Islamist enemies), such as conspiracy, providing material support for terrorism and solicitation of murder, are not actually violations of the laws of war; they are violations of other kinds of laws.
They should be prosecuted in non-military courts, either in the country where the crime occurred or in the country of the victims.
Military law experts insist that military courts, tribunals and commissions should only prosecute actual war crimes. Moreover, the only kinds of people who should be subject to military prosecution are those who are subject to the laws of war: combatants (of the "lawful" variety).
In the case against Khadr, for example, he was charged and ultimately pleaded guilty to "murder in violation of the laws of war" for throwing a grenade that killed an American sergeant in the heat of battle in Afghanistan.
But a soldier is not a "protected person" under international laws of war, and so to charge that the killing of a soldier in battle is a war crime is a post-9/11 American invention.
If these refashioned law of war violations were regarded and treated as universally applicable – as the laws of war are inherently supposed to be, by the same measure that Khadr's "unprivileged" status made him subject to the war crimes charge of murder, CIA agents, who are non-military and thus are unprivileged, could be charged by a foreign government with the war crime of murder for operating Predator drones that kill civilians or combatants.
Last year, the state department and the defence department disagreed over this issue. The state department argued in favour of restoring the pre-9/11 interpretation of the Geneva Conventions in order to rectify the contradictions and bring the US back into line with international consensus.
Had the state department prevailed, which it did not, the defence department would not have had any ground for pressing charges against Khadr (or others whom the government wants to prosecute) in the military commissions. Thus the post-9/11 fabrications were retained by the Obama administration, in part, for Khadr.
The only prisoner at Guantanamo who faces charges that plausibly fall within the ambit of conventional (i.e., non-fabricated) war crimes is Abd al-Rahim al-Nashiri.
He is accused of masterminding the 2000 al-Qaeda attack on the USS Cole.
If his case ever comes to trial, the military commission will have to contend with the fact that Al-Nashiri is one of three people the government has admitted to waterboarding. He was also subject to mock execution with a power drill and a handgun.
The Guantanamo problem is and will remain the subject of heated political debates and litigation for years to come. But it is also widely regarded as a problem of the past.
No new prisoners have arrived there for years.
For many of the 172 prisoners, this may be the last "home" they will ever know. They live, immobilised, in the grip of this evolutionary experiment in detention. They are, to the public imagination, like a still life.
Lisa Hajjar is a professor of sociology at the University of California - Santa Barbara. Her research and writing focus on the laws of war and conflict, human rights, and torture. She is the author of Courting Conflict: The Israeli Military Court System in the West Bank and Gaza. She is also a co-editor of Jadaliyya and serves on the editorial committees of Middle East report and Journal of Palestine studies. Hajjar is currently working on a book about anti-torture lawyering in the US.
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