Guantánamo remains a stain on America’s reputation

IT IS always twilight in the circular passage where the guards keep watch around the clock through wide windows, eyeing the “forever detainees” in Camp Six at America’s naval base at Guantánamo. These are the men who are deemed too dangerous ever to be set free but whose jihadist activities were apparently too shadowy to provide enough evidence to secure convictions in court. The passage is murkily lit so that the guards—and the rare visiting journalist—can peer through one-way glass unobserved by the detainees.

The official mantra is that the detainees’ treatment must be “safe, humane, legal, transparent”. But to anyone who believes in innocence until proof of guilt, visiting is a discomfiting experience. These men, however heinous their alleged crimes, have been detained without trial, most of them for more than a decade. They have had little prospect of freedom, or even of facing trial in America. Though the Caribbean laps against the shore nearby, none of them ever sees it.

In each walled-off section, ten prisoners or so mill around in a communal area with steel tables bolted down. Some lounge in chairs or on a sofa. A few read. Five times a day they line up and prostrate themselves in prayer, with arrows painted on the floor helpfully pointing towards Mecca. Air-conditioning keeps the place cool, even cold, inside; some of the detainees prefer to loaf outside, where noon-day temperatures nudge 38°C. Occasionally a prisoner gesticulates towards the window. A guard puts on a plastic visor against what the authorities call “splashing”, meaning spitting at a jailer or, in past years when prisoners were sometimes “non-compliant”, throwing excrement or vomit. The guard opens a door, exposing a narrow chain-linked limbo between the guards’ and prisoners’ sections, and asks in sign language what is wanted. Usually it is a request, readily met, for toilet paper or soap.

When your correspondent visited, one prisoner, somehow sensing the journalists peering through the one-way window, had propped up a painting of a white question-mark on a grey background, with a padlock at the bottom instead of a dot. The most plausible interpretation was that it expressed uncertainty about the inmates’ future after January 20th, when Donald Trump assumes the American presidency.

By January 11th 55 prisoners remained in Guantánamo, all but one said to be “highly compliant”. Yemen had the most citizens still detained (23), followed by Pakistan and Saudi Arabia (six each) and Afghanistan (five). Apart from 22 in Camp Six, another 15 (including the five accused of orchestrating the attack on the World Trade Centre on September 11th 2001) are held in Camp Seven, the most hidden and highly guarded block. The remaining 18 have been cleared for transfer to third countries. According to the New York Times on December 19th, the governments of Italy, Oman, Saudi Arabia and the United Arab Emirates were willing immediately to accept 17 or 18 of those cleared to go; four had gone by January 11th. So 41 or 42 may be left in Guantánamo by the time Mr Trump moves into the White House.

Lock up some more

Whereas Barack Obama had promised to empty the place and close it down, during the election campaign Mr Trump said the opposite. “We’re gonna load it up with some bad dudes, believe me, we’re gonna load it up,” he said in February. If he keeps his word, the remaining prisoners are likely to stay there, perhaps for life. Conceivably they could be joined by Islamic State fighters captured in Iraq and Syria. The camp commanders say they can close the prison forthwith if so instructed, or conversely make room for another 70-100 detainees. A cell block being renovated could soon cater for 200 more. At its zenith Guantánamo held around 684; up to 780 have passed through it. At least seven are known to have committed suicide.

When the first al-Qaeda suspects were flown to the naval base in 2002, members of George Bush’s administration advanced several reasons for holding them there. If they were jihadists determined to wage war on Americans and other Westerners, they should be held for the duration of hostilities to prevent them from returning to the battlefield, like prisoners-of-war in any conflict. While incarcerated, they might provide useful intelligence, helping to prevent further terrorist atrocities.

However, as “unlawful enemy combatants” who followed none of the laws of war, Mr Bush’s lawyers reasoned, they were not entitled to all the protections of the Geneva Conventions, such as the rights not to be interrogated, and to correspond with families. And since they were being held outside America, they fell outside the jurisdiction of American courts. Moreover, so the argument ran, since al-Qaeda views its war against the West as eternal, it may never formally end, so its captured adherents could be held indefinitely.

Starting with Camp X-Ray, where the spectacle of shackled and blindfolded detainees in cages appalled people worldwide, including many who had sympathised with America after September 11th, the camps rapidly filled up. Nearly all the prisoners had been handed to the Americans by allies in Pakistan, Afghanistan and elsewhere, often with the lure of bounties. Many turned out to be marginal figures who had tenuous, if any, links to al-Qaeda.

For the first few years the camps were ill-run and the inmates mistreated. According to Clive Stafford Smith, a British lawyer who has defended a clutch of prisoners from the beginning, for four years all were held incommunicado; no one even knew their names. After 2006 a new batch of supposedly high-value prisoners, including the alleged planners of September 11th, arrived, having been tortured by CIA agents, among others, in secret “black sites”, in contempt of international law and America’s own values of justice.

As unease mounted at home and especially abroad, Mr Bush sought to create the semblance of a judicial system by getting Congress to pass a law creating “military commissions” where some of the prisoners could be tried. The Supreme Court began to nudge the camps towards at least partially deferring to American law, declaring that detainees had the right to petition for habeas corpus to challenge the reasons for their confinement. Later Mr Bush himself began to call for the camps’ closure. By the time Mr Obama took office, saying that he would close them within a year, the tally of detainees had fallen to around 242. Since March 2008 no more have arrived.

Virtually all human-rights lawyers consider the commissions, in the recent words of Human Rights Watch, a New York-based monitor, to have been “an absolute disaster”. Defence lawyers describe them as a “legal black hole”. Another seasoned human-rights expert who has visited Guantánamo describes it as “a Kafkaesque legal conundrum”..

The accused have much weaker rights than in a federal court. Instead of a randomly selected jury of civilians, the “convening authority” in the person of the presiding military judge chooses fellow officers. “Many of the protections in normal courts are stripped away,” says David Nevin, defence lawyer for Khalid Shaikh Mohammad, the alleged chief planner of the September 11th attacks, known widely as KSM. “There is no requirement for the accused to be brought speedily to trial [as under the constitution’s sixth amendment]. He was taken into custody in 2003 and held incommunicado for three-and-a-half years. He had no lawyer until 2008. The prosecution did not start until 2012. There is no right to exclude coerced statements; no exclusion of evidence derived from torture; no ban on hearsay evidence.” The list of shortcomings could go on.

The trial proper has yet to begin. The irony, as another lawyer puts it, is that “if KSM had been tried before a grand jury in New York the trial would have been over years ago”—and would probably have led to a conviction. He was recorded on Al Jazeera, a Qatar-owned television channel, boasting of masterminding the September 11th attack. His lawyers’ best approach is probably to stress the CIA’s admission that it had tortured him for several years.

A further indictment of the commissions is that, ten years after they were set up, they have achieved only eight convictions, of which four have been wholly or partly overturned. Only ten detainees in Guantánamo are currently facing trial or awaiting sentencing. The rest are simply detained without trial.

But the prosecutor in the two biggest cases, Brigadier-General Mark Martins, a former Rhodes Scholar with a stellar academic record at Oxford and Harvard, says you cannot compare the commissions with a federal court. The commission oversees a “sharply adversarial process” where, since the reforming act of 2009, “much greater weight is given to the defence.” The accused, he insists, are given a fair trial. Court-martials, he avers, have a higher acquittal rate than civilian courts. The accused in Guantánamo, he claims, have sturdier legal defences than those at Nuremberg after the second world war.

Looking for the key

Perhaps the biggest puzzle is why Mr Obama has failed to fulfil his promise to close the place down. Plainly he found it much harder than he had expected. At first, according to some in his inner circle, he was persuaded to keep it open temporarily as a bargaining chip with Congress in his quest to enact contentious domestic reforms, for instance in health care. Soon after he came to office, he did manage to improve the commissions, getting Congress to pass an act that gave detainees a wider scope for defence and brought in review boards that allowed prisoners every six months to argue for release. He also appointed “special envoys for Guantánamo closure”. These speeded up transfers of detainees to third countries, more than 40 of which (including such strange bedfellows as Albania, Cape Verde, Estonia, Kazakhstan, Palau and Uruguay) have agreed to receive some of those set free. Recently Oman, Saudi Arabia and the United Arab Emirates have been the most willing.

But as relations with Congress worsened and he lost control to the Republicans after 2010, Mr Obama found himself blocked on virtually every front. Even though a number of leading Republicans, such as Senator John McCain, had called for Guantánamo to be closed, it became an article of faith for most of Mr Obama’s opponents and many Democrats that it should stay open. Hillary Clinton, among others, began to wobble, though she had previously declared that Guantánamo recruited more terrorists than it kept off the battlefield and had suggested holding trials, perhaps including military commissions, in mainland America.

Mr Obama, too, had at first hoped to bring the alleged planners of September 11th to trial before a federal court in New York. But when a wave of emotion was stirred up by the president’s foes against the idea that the mass-murderers could ever set foot on American soil, he quailed. And when he campaigned for re-election in 2012, some of his most influential advisers were adamant that if detainees were brought to the mainland and tried in federal courts or even before the new military commissions, he would lose his job.

The Department of Justice and the Pentagon encouraged Congress to be obstructive, citing, among other things, an analysis of the freed detainees. A report from the director of National Intelligence concluded that of 647 former detainees under scrutiny, 18% have definitely reverted to jihad and 11% are suspected of doing so. But of those released since Mr Obama came to office, the recidivism rate has dropped sharply; only nine, according to the National Security Council, have definitely “re-engaged” with jihad. Yet, says Brigadier-General Martins, “By letting them go you could be sentencing someone else to death.” Among Mr Trump’s picks, General James Mattis as secretary for defence and General John Kelly at homeland security are said strongly to support keeping Guantánamo open. Mr Trump, by the by, has said torture is sometimes necessary.

Missing the early boat

Yet Mr Obama repeatedly declared his intention to close the place—and admitted last year that he should have done so on his first day. “He had absolute executive authority to do so,” says Mr Nevin. So why didn’t he? “He could’ve done it before the politics metastasised,” says Richard Kammen, who is defending another of the prisoners facing the death penalty (see article). “He made great speeches but not much else,” he adds, lamenting Mr Obama’s inability to persuade the agencies that have been supposedly under his control to do his bidding. “If Bush had been president and had wanted to close Guantánamo, it would have been closed, because he knew how to deal with the agencies,” surmises Mr Kammen.

Whatever the reason, not closing Guantánamo is one of Mr Obama’s most painful failures, putting an enduring stain on America’s human-rights record. Mr Obama sounds ashamed as well as frustrated. Asked in 2015 what he wished he had done differently as president, he cited Guantánamo. “It’s not who we are.”