Guantanamo, is there justice in the justice system?

National Yemen

Laura Pitter, counterterrorism advisor at Human Rights Watch

Interview by Jihan Anwar

As the hunger strike of Guantanamo prisoners approaches the 100th day, international focus has been raised once again on the controversial United States prison at Guantanamo bay. Obama, declared that closing the prison would be one of his first priorities as President, is being pressured, 5 years later, to shut down the facility. National Yemen asked Laura Pitter, counterterrorism advisor at Human Rights Watch, a series of questions related to Guantanamo prison. Pitter, a reporter during the war in Bosnia, worked for the UN in both Bosnia and in post 9/11 Afghanistan as a protection and political affairs officer.  Laura Pitter holds a master’s in international affairs from Columbia University, and a law degree from the University of San Francisco. 

1. Obama has recently stated that he would like to close Guantanamo but that the Congress wouldn’t let him. Do you think the Congress could truly prevent Obama from shutting the prison down?

Congress does control the use of government funds and therefore they can restrict the administration’s ability to close Guantanamo by preventing the government from spending money on certain things related to closing the prison down. For instance, in order to close it down, the administration needs to transfer prisoners out. However, Congressional restrictions in place now prevent the Department of Defense from spending money on the transfer of detainees out of Guantanamo to home or third countries unless certain conditions are met. While these conditions make it more difficult to transfer detainees out they certainly don’t make it impossible (see below). There are many things the administration could have done before the restrictions were put in place and many things it can still do now even with the restrictions in place to transfer detainees out of Guantanamo.

2. Regarding prisoners in Guantanamo, Yemenis and others, that have been cleared for release are still there. Why haven’t they been released yet?

It is not exactly clear why many of these transfers have not happened but one of the main reasons appears to be the lack of political will to release detainees who the administration fears may, even if they have been deemed eligible for transfer, become involved in some type of militancy and threaten the United States in some way. We do not believe this is a valid basis for continued detention and have repeatedly urged the administration to either prosecute the detainees in Guantanamo against whom there is any credible evidence in courts that comport with fair trial standards or release them.

To give a bit of background, of the 166 prisoners currently in Guantanamo, 86 were assessed in 2010, by a task force that US President Obama set up, as eligible for transfer. But just to be clear, this task force did not say these detainees were declared free. It said that these individuals were eligible for transfer out of the facility, either to home countries or to third countries for resettlement, subject to the implementation of appropriate security measures in the receiving country.  The US has not indicated what those “appropriate security measures” would be but said they would vary in each individual case.

President Obama has placed a lot of the blame on Congress for the failure to transfer detainees out of Guantanamo but that blame is not entirely correct. For a bit of background, the Congressional restrictions make it more difficult to transfer detainees out but not impossible. For detainees that, upon transfer, will not be held in detention facilities, the most onerous part of the restrictions require the US Defense Secretary to certify that receiving countries have taken certain steps to ensure that those being transferred do not engage in “terrorist activity” or “take action to threaten” the US and its allies. If the US Defense Secretary, for one reason or another, cannot certify that those steps have been taken, he can waive the certification requirement in lieu of “alternative actions” – a term which has no clear legal or procedural definition. The only guidelines are that the alternative actions “substantially mitigate” the risk that the detainee being transferred may engage in terrorism or take action to threaten the US and its allies. If detainees released are to be held in detention facilities then, in addition to the above criteria, the Defense Secretary must also certify that the government to which the detainee will be transferred is not a “designated state sponsor of terrorism;” maintains control over the detention facility; is not, as of the date of certification, facing a threat that is likely to substantially affect its ability to exercise control over the individual; and has agreed to share information with the United States relating to national security.

We don’t know what if any steps the Secretary of Defense or other parts of the US government have taken to create the conditions in home or third countries of detainees that would allow for certification or waiver described above. President Obama recently made statements indicating that he still has the goal of closing Guantanamo, wants to do so, and is going to refocus his energy on trying to make that happen. We hope he does. The current policies are entirely unsustainable. A good place to start would be with the Yemeni detainees.

Of the 86 detainees slated for transfer, the largest number of detainees, 56, are from Yemen. The Yemeni government has requested the return of its citizens in Guantanamo back to Yemen but the US currently has a moratorium in place on transfers to Yemen. It implemented this moratorium after Umar Faourk Abdulmutallab, a Nigerian alleged to have trained in Yemen, tried to blow up a Detroit-bound plane with explosives hidden in his underwear on Christmas Day 2009. But from Human Rights Watch’s perspective a blanket ban on the transfer of individuals to one country simply because of the actions of another in that country who has no real connection to the detainees being considered for transfer is a form of unlawful collective punishment. We have strongly urged the administration to reconsider this policy and begin working with the Yemeni government on some solutions. Recently, United States Senator Dianne Feinstein, the chair of the Senate Select Committee on Intelligence and an initial supporter of the moratorium, asked Obama’s national security director to reevaluate the hold on transfers and consider whether, with appropriate assistance, Yemeni detainees can begin being transferred home. We hope the administration seriously reconsiders its moratorium policy.

We also know that Yemen’s transition government is launching its own push to bring the Yemeni detainees home. In April, Yemen’s cabinet approved a resolution from the Yemen Human Rights Minister, Hooria Mashhour, pledging that ten key government ministries will watch over any repatriated detainees, both to prevent them from potentially threatening the US and to ensure they receive counseling, job training and other assistance to help them reintegrate into society. In order to meet US concerns, she has also prepared a draft memorandum of understanding on sharing information on, and access to, repatriated detainees with the US. In addition, the Yemeni authorities have proposed to build a Yemen-based rehabilitation center to house detainees upon their return. Both Mashhour and a team from Yemen’s National Security Bureau were in Washington this week to discuss the Guantanamo detainees with US officials. Unfortunately, Mashhour left Washington earlier than scheduled. She has many good proposals on facilitating the return of detainees from Yemen. We hope the US administration Yemeni Cabinetwill engage with Mashhour and other Yemeni officials to draft proposed solutions.

The other 30 detainees slated for transfer are from a variety of other countries. Many of these men have been in Guantánamo for more than a decade but the Obama administrations claims, for a variety of reasons that they cannot be sent home either because their home state is too unstable or they would face persecution there. In the latter category of cases, where detainees would face persecution in their home countries, they claim there is simply no third country that will accept them. However we know there are cases, like that of Guantanamo detainee Shaker Amer, where detainees have places to go that are safe but they still have not been transferred. In Shaker Amer’s case, he has been detained for more than 11 years and the United Kingdom is willing to accept him. He has a wife and children there. For these detainees, we have urged the administration, after such a long period of detention, to do more to make these transfers happen.

3. Some have suggested that the prisoners who are on hunger strike just wanted to get ‘media attention’, and that ‘compliant inmates’ are well treated, what is your opinion on such statements?

We cannot comment on the motives of the hunger strikers because the United States does not give Human Rights Watch access to the detainees, despite repeated requests. Human Rights Watch has access to prisons all over the world but has been denied access at Guantanamo. But from detainee lawyers, the US military and others who have access to the detainees we know that the underlying cause of the hunger strike is uncertainty on the part of the detainees about their fate.  This uncertainty has heightened feelings of stress, fear and despair. Many of Guantanamo’s detainees have been held without charge or trial for more than a decade and with no end to this detention in site it is not surprising they have resorted to such desperate measures, regardless of the conditions in which they are detained.

4. Is Guantanamo prison, and all it represents, legal? What would be the strongest motives to close it?

The indefinite detention without charge or trial at Guantanamo is a clear violation of international law. The United States should either prosecute detainees against whom it has any credible evidence of wrong doing or release them. As Obama himself has said, the prison has weakened US national security, generates enormous hostility towards the United States, and undermines US credibility when promoting the rule of law in other countries. Though the need to comply with its own obligations under international law should be motive enough to want to close the facility, the fact that keeping Guantanamo open also undermines US national security should be another strong motivating factor as well.

5. Could a court rule Gitmo as unconstitutional? What would it take for that to happen?

It is not really possible to challenge the entirety of Guantanamo’s existence on constitutional grounds in US courts. That is not the way the US court system works. In US courts you can either challenge your continued detention or you can challenge your conviction in a legal proceeding against you in various ways – some of which may be on the constitutionality grounds.  Many detainees have tried to challenge their detention in US courts based on constitutional grounds. A lot of these cases succeeded at the lower court level but then were reversed by appellate courts. From the perspective of Human Rights Watch, US courts have been too deferential to the administration’s views on the need to detain people indefinitely until the supposed “end of hostilities” and on the validity of the government’s evidence.

Other challenges have been launched against the military commission proceedings going on in Guantanamo but these challenges are different from those related to the indefinite detention of those without charge or trial. Although 166 detainees are currently in Guantanamo, only six of those face any formal charges. Seven have been previously convicted. Two of those convictions have been overturned on appeal. Since those decisions, several of the other five detainees who have been convicted have also launched appeals or are in the process of doing so.

6. It seems that a main reason that has led the Bush administration to take prisoners to Guantanamo was to allow the use of unlawful interrogation methods, including torture, outside of the US. Do you believe that is the case?

I think it is clear that the detainees were held at Guantanamo so that they would be outside the bounds of US law. That was the intention. Detainees challenged this and argued that they had the right to have challenges to their continued detention heard in habeas corpus proceedings in US courts. The Bush administration opposed this, arguing that Guantanamo was outside the jurisdiction of US courts. The US Supreme Court in Rasul v. Bush in 2004 agreed with the detainees and in this sense that it found that the government could not escape the bounds of US law. Detainees had the right to challenge their detentions in US courts. Unfortunately, though they were able to bring habeas cases before US courts challenging the lawfulness of their detention, these courts have been so deferential to the government’s view of the facts that, in many cases, this important right has not been enforced.

One of the reasons the Bush administration wanted to keep detainees in Guantanamo was to hide their torture and mistreatment from the public. Also if the administration was going to prosecute any of them, it wanted to ensure their convictions by prosecuting them before military commissions that allowed the use of evidence derived from torture and otherwise did not provide basic due trial rights . These military commission rules have since been changed under Obama but certain evidence obtained from coercion may still be used and many serious fair trial concerns remain. Other rules prevent detainees who were tortured in US custody to talk about this in open court, and court documents that discuss it are classified. Even if this mistreatment gets discussed in court it is unlikely it will be made public.

It is now clear that very few detainees will be given a trial.  Currently there are 166 detainees at Guantanamo. The administration claims an interest in prosecuting about 30 of them. However, only six actually face any formal charges despite the fact that many of those in this group have been detained for more than a decade.  So while the military commissions claim to be open, fair and transparent, they will instead hide how evidence was obtained and how interrogations were conducted, including the use of torture. In the United States, normally justice is about getting to the bottom of things, getting to the truth, but in the military commissions at Guantanamo the government seems to want justice without the truth.