Yesterday, officials at Guantanamo Bay announced that United States v. Khalid Sheikh Mohammed, et al. a.k.a the 9/11 trials, will be delayed until at least April. The case has been at a standstill since December when the presiding judge, Army Col. James Pohl, decided to adjourn to determine the mental status of one of the detainees on trial. Continue reading
Dr. Remington Nevin is a consulting physician epidemiologist board certified in Public Health and General Preventive Medicine by the American Board of Preventive Medicine. Dr. Nevin specializes in the evaluation and diagnosis of adverse reactions to antimalarial medications, particularly the neurotoxic quinoline derivative mefloquine. A long-time advisor to the Center for Policy & Research, he advised us on our report exploring the government’s use of mefloquine at Guantanamo, Drug Abuse: An Exploration of the Government’s Use of Mefloquine at Guantanamo. Continue reading
“It’s a Mixture of Kafka, Machiavelli, Catch 22, and George Orwell’s 1984. It just depends on the day” – Major Jason Wright Defense Counsel for K.S.M.
Last week, I had the opportunity to travel to Guantanamo from October 22nd through 25th to observe the Military Commission proceedings for United States v. Khalid Sheikh Mohammed et. al. Perhaps the most appropriate word to describe my observations is frustration. Regularly during the week, the observable liberties afforded to each of the accused, including prayer time in the courtroom, freedom of attire, and remaining unshackled were only contradicted by the accusations of intentional sleep deprivation, confiscated attorney-client privileged material, and force-feeding. Furthermore, the interpretation of the Military Commissions’ rules and their applications were consistently debated, particularly with regards to how they should be implemented when other laws, such as international laws, hold inconsistent stances. Continue reading
The United States announced yesterday that Libyan terror suspect Abu Anas al-Liby (also known as Nazih al-Ragye) has been transferred to the United States after being held and interrogated aboard a U.S. Navy ship since his capture in Tripoli on October 5th. He is being held as a suspect in the 1998 bombings of the U.S. embassies in Kenya and Tanzania which killed 224 civilians. A criminal indictment was filed against him in 2001 for his suspected involvement in the embassy bombings, but he has evaded capture for over a decade. Continue reading
Lawyers for Guantanamo detainee Tarek El-Sawah, an admitted al-Qaeda explosives trainer held at the facility for over 11 years, are arguing that he should be released because of his serious obesity-related ailments. While at Guantanamo, the 55 year-old El-Sawah nearly doubled his weight, at one point reaching 420 pounds. His lawyers argue that he could die at any time; he is diabetic, has trouble breathing and walking, and has difficulty staying alert during meetings. They maintain that he faces the very real possibility of not making it out of Guantanamo alive. Continue reading
In August of 2013 I had the opportunity to travel to Guantanamo Bay to represent Seton Hall Law’s Center for Policy and Research as an NGO observer at the 9/11 trials. In particular, I was able to watch one of many pretrial hearings in the case of the United States v. Mohammed, in which Khalid Sheikh Mohammed (KSM), Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali (AKA al-Baluchi), and Mustafa Ahmed Adam al Hawsawi are named as defendants. The five detainees are accused of plotting the 9/11 attacks that lead to the deaths of nearly 3,000 people in New York, Virginia, and Pennsylvania.
Last week, we wrote about the Senate Judiciary Committee’s hearing on Guantanamo Bay. The debate, entitled “Closing Guantanamo: The National Security, Fiscal, and Human Rights Implications,” brought together members of Congress from both sides of the aisle, including Chairman Dick Durbin (D, IL); Chairman of the Full Committee Patrick Leahy (D, VT); Ranking-Member Ted Cruz (R, TX); and Rep. Mike Pompeio (R, KS-4), among others. Testifying were top-ranking members of our armed forces and members of international human rights organizations, including Major General Paul Eaton, U.S. Army (Ret.); Brigadier General Stephen Xenakis, M.D., U.S. Army (Ret.); Lieutenant Joshua Fryday, Judge Advocate General’s Corps., U.S. Navy; Frank Gaffney, Founder and President, Center for Security Policy; and Elisa Massimino, President and Chief Executive Officer, Human Rights First.
Most of the usual Guantanamo-related topics were discussed, including arguments for and against the closure of Gitmo, what that closure might mean for American national security, and how we might go about transferring current detainees to domestic prisons or foreign countries for continued detention or release. As we’ve come to expect, testimony from Congressional representatives was fairly predictable based on party membership. Chairman Durbin opened the hearing by calling for the closure of Guantanamo Bay, stated that Gitmo had become an “international eyesore” and that “the Administration could be doing more to close (GTMO)…, [but] the President’s authority has been limited by Congress.” Nothing too groundbreaking there, but it’s always nice to see someone in a position of authority acknowledging that this isn’t all President Obama’s fault. Like I’ve said before, this isn’t a unilateral decision for the President to make. It’s going to take a level of bipartisan cooperation that’s been completely absent in Congress in recent history.
But even if President Obama can’t single-handedly close Guantanamo, Chairman Durbin noted that through the FY14 Defense Bill, passed by the House Armed Services Committee in early June, he has an expanded ability to dispose of prisoners (calm down, disposing means releasing or transferring in this context) as he sees fit. But we’ve seen problems with this as well. First, where do we release or transfer these detainees? Just a few days ago we saw Senator Saxby Chambliss voice concerns about releasing detainees to their home countries where they may attempt to join or re-join al-Qaeda. Our European allies have a history of rejecting transfers of Guantanamo detainees. And we certainly aren’t going to give them asylum here. So even if the President’s powers to release or transfer detainees have been expanded, it’s still a delicate situation.
Ranking-Member Cruz was one of the few speakers to advocate for keeping Guantanamo Bay open, bashing the Obama administration for it’s policy and saying that we “continue to apologize for continuing the policy.” Senator Cruz’s main argument was that we can’t embrace a “utopian fiction” where released detainees embrace global peace and pledge not to take up arms against the United States. I could understand that concern if we were talking about releasing KSM. I can understand that concern if we’re talking about releasing any detainee that we know was involved in attacks against the United States. But I’m pretty sure nobody is calling for those detainees to be released. So what about the detainees with no formal charges or evidence against them? Are we going to hold them for the rest of their lives just because there’s a chance they could join al-Qaeda if we release them? Apparently Senator Cruz would say yes.
Major General Eaton and Brigadier General Xenakis also testified in front of the panel, both advocating for the closure of the detention center. Major General Eaton stated clearly that “[t]here is no national security reason to keep Guantanamo open,” and even went so far as to say the keeping it open this long has undermined national security by damaging our “moral leadership, political leadership, military power and economic power.” Brigadier General Xenakis attacked the much-covered force-feeding policy, stating that it violates not only the basic ethics of the medical field, but also the Geneva Convention.
Rep. Pompeio joined Senator Cruz’s position, making the bold claim that “there are no human rights violations occurring at [GTMO].” He also voiced concerns that foreign nations would torture detainees if we were to transfer them. Now, I’m not saying I can’t see any reason behind the force-feeding policy. I get that we don’t want upwards of 40 detainees dying of malnutrition on our watch. But to say shoving a rubber tube through the nose and into the stomach of a fully conscious human being in an extremely painful fashion is not a human rights violation is borderline ludicrous.
The way I see it, the only semi-logical argument for keeping Guantanamo Bay open came from Mr. Gaffney. Mr. Gaffney argued that Gitmo should remain open until a safe and effective alternative is pinpointed. That much I can get on board with. I already pointed out that there are some holes in the current plan. But Mr. Gaffney’s seems to be worried about detainees escaping from super-max prisons on U.S. soil and rejoining al-Qaeda or remaining in the U.S. to plan attacks. Is this what we’re really concerned about? We already trust maximum security penitentiaries to hold our most notorious murderers, so why does it matter what their nationality is? According to documents from the New York State Department of Corrections, there were a total of 10 escapes from detention facilities of any kind between 2006 and 2010. That equates to a rate of .03 escapes per 1,000 inmates during that time period, and includes statistics from ALL New York state penitentiaries. I, for one, am no too worried about detainees, who will probably have additional monitoring in place, escaping from super-max prisons. Again, I agree that we need a rock-solid plan in place before we close Guantanamo, but the concerns cited by Mr. Gaffney are simply not realistic.
That’s probably a good thing since the plan proposed by Democrats involved transferring detainees to the same super-max facilities that Mr. Gaffney is so worried about. Senator Dianne Feinstein (D, CA) pointed out that it will cost tax payers roughly $551 million to operate Guantanamo Bay in 2013, and roughly $2.1 million per detainee. According to her estimates, it would cost only $287,000 to house a detainee in a super-max facility here in the U.S. Especially since the sequester hit the federal government, this would obviously be a much more cost-effective model. So on top of potentially eradicating human rights violations, we might be able to take a step towards a balanced defense budget.
All in all, we are still in a stalemate. The hearing was essentially a summary of all the arguments we’ve heard about Guantanamo Bay over the past 5 years. Democrats and members of the military are still pushing for its closure while Republicans are standing firm on keeping it open. I don’t know that we’re any closer to actually closing Gitmo after the hearing, but it’s good to see that we haven’t given up the fight.
***Special thanks to Mr. Rick Erkel for reporting on the hearing
Chris Whitten, Research Fellow
Center for Policy and Research
It now appears that the government is taking steps toward lightening the burden on Guantanamo Bay, and perhaps even closing it. Yesterday, The New York Times reported that the Senate Armed Services Committee approved the National Defense Authorization Act for 2014. The bill will lift a ban on the transfer of detainees to the United States for the purpose of prosecution. The bill also pertains to transferring detainees for medical reasons, or even for continued detention in American prisons.
Since 2011, the U.S. Secretary of Defense has been required to certify that a list of conditions have been met before a detainee could be transferred. Most of the conditions were extra security measures that essentially stopped the government from even attempting transfers, even for low-security risk detainees. Under the new bill, the checklist would be done away with and the Secretary of Defense would only need to certify that the transfer would be in the best interest of national security. This would be a much more flexible process that would probably lead to more transfers and possibly more trials for detainees.
Although the bill has been approved, it still has a long way to go before it becomes a law. No actual vote has been held; members of the Committee have only agreed to debate the bill’s provisions on the Senate floor. A rival bill has also been drafted by Republicans in the House of Representatives that would maintain the blanketed ban on transfers for any reason whatsoever.
So what are the benefits of the bill? First of all, it might speed up the process for detainees who are actually being charged with crimes. Military tribunals are notoriously slow, and we often have to wait years before we see a verdict in these trials. If we opened up our traditional court system, we might see quicker results. That’s not to say that our traditional system is lightning quick, but if we remove some of the barriers that prosecutors and defense attorneys face in military tribunals we would probably see a lot more efficiency.
Aside from that, the cost of providing medical treatment to detainees at Guantanamo can be astronomical. Medical expenses are high as it is, but when you factor in transportation costs for medical personnel and equipment, they become ridiculous. We would not only be able to cut our bottom line if we were able to provide quicker, better, and cheaper medical attention for detainees, but we would probably be able to quiet some of the human rights concerns that have stemmed from force-feeding detainees that have been on hunger strikes for months now.
Overall, there are a lot of positives to be found in the bill. President Obama’s initial promise to close Guantanamo a year into his presidency has turned into a lengthy debacle and it doesn’t look like the government will be able to close it in one fell swoop. If we make the decision to close it, it’s going to be a long process. And even if this bill were voted into law it’s probably unlikely that high-value detainees would be transferred due to security issues. So is this bill just a small step towards the slow phasing-out of Guantanamo Bay? Yes. But it’s a step nonetheless, and a step we can build on.
Chris Whitten, Research Fellow
Center for Policy and Research
Last month, 13 Guantanamo detainees wrote an open letter requesting independent medical examinations and advice. The detainees, who are using their hunger strike as a means of communication and to gain global attention, said that they did not trust military doctors whom they accused of putting their duties to their superiors above their duties to their patients, in violation of the ethics of their profession. In response, more than 150 doctors, including some from the US, have signed an open letter to President Obama, urging the administration to allow Guantanamo detainees to receive new treatment. The letter, which was published in Lancet, stated:
“Without trust, safe and acceptable medical care of mentally competent patients is impossible. Since the detainees do not trust their military doctors, they are unlikely to comply with current medical advice. That makes it imperative for them to have access to independent medical examination and advice, as they ask, and as required by the UN and World Medical Association.”
The question is whether or not the actions taken by the Guantanamo medics are ethical. According to the World Medical Association, force-feeding hunger strikers of sound mind is never ethically acceptable. The WMA has stated: “Even if intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading statement.” Therefore, the means by which the medical staff is keeping the detainees alive violates international law, and to some, constitutes torture. However, it is a doctor’s duty to provide life-sustaining treatment. Unlike Cruzan v. Dir. Missouri Dep’t Health which held that competent adults have the right to refuse forced feeding, even if death will result, Washington v. Harper held that prison officials could override a prisoner’s objection to forcibly being administered medication, assuming that it’s in the prisoner’s best medical interest. So what other viable treatment options do these physician’s have, given that the detainees remain on hunger strike? While the means to force feed someone are gruesome and painful, wouldn’t it be even worse if we allowed our detainees to starve themselves to death?
President Obama has stated that America should never practice torture and that Guantanamo should be closed. The only way that will happen is if we have healthy detainees, fit to either stand trial or to be sent elsewhere. If this is truly what he wants, the best place to start is by ending this hunger strike. In this case, he should start listening to his detainees and allow for independent medical examinations. The detainees’ aren’t going to stop their hunger strike, and the medical examiners aren’t going to stop force-feeding them. If no one is going to give, the President should force somebody’s hand.
Alexandra Kutner, Research Fellow
Center for Policy and Research
A friend of mine recently wrote me to about the hunger strikes taking place at Guantanamo. He made a very interesting comparison between the hunger striking strategy employed by the Guantanamo detainees and those used by Irish separatists jailed by the British. He noted that the Irish were unsuccessful in their efforts to gain concessions from the British until they struck upon the strategy of a serial hunger strike. One detainee would stop eating, eventually starving himself to death, only to have his hunger strike taken up by another. This sustainable tactic created a relentless tension that eventually caused the British to cave.
Conversely, the Guantanamo detainees have typically used parallel hunger strikes. The resulting large number of hunger strikers is generally assumed to be an attempt to garner media attention. My friend is definitely correct in his assessment that this is not a sustainable tactic, which he took to mean that the Irish strategy would be more effective. However, as I pointed out to him, there is a key difference between the two cases: in Guantanamo, detainees are not allowed to starve themselves to death, only into infirmity. Once their bodyweight drops too much, they get a tube up the nose and food down their gullet. From which I concluded that media attention the sheer number of hunger strikers was the only effective civil disobedience strategy available to Guantanamo detainees.
However, it has since occurred to me that another strategy may be at play here. By increasing the number of hunger strikers, the detainees increase the workload on the medical personnel conducting their forced feeding. As has recently been reported, the situation has gotten to the point where they are having to conduct forced feeding around the clock in order to keep up. If the detainees are able to continue to grow this hunger strike much more, and sustain it just long enough, they may be able to completely overwhelm the guard force medics. If this happens, we could see several deaths in relatively short succession.
The media coverage of such an eventuality would be substantial, the political left would be mobilized, and pressure to finally close the prison would mount.
Or… maybe they’re just pissed off.
In either event, such as strategy will not work. In response to the increased hunger striking by the Guantanamo detainees, the US Navy has sent an additional 40 medical personnel to support the over-burdened force-feeding operations. This capacity and willingness to scale the response to hunger strikes will negate any high-volume strategy, at least in terms of impact on operations.
Interestingly, according to the Navy at least, the term “force feeding” may be a bit of a stretch. Army Lt. Col. Samuel House, in a statement issued on Monday, claimed that “currently only a handful of detainees are being tube-fed.” The rest of those designated for “force-feeding” are actually just isolated from their peers, sat in front of a meal, and eat voluntarily. If this is the case, then the primary driver of the hunger strike is peer pressure rather than solidarity of opposition. If that is the case, this hunger strike is just as doomed as the previous ones.
Paul W. Taylor, Senior Fellow
Center for Policy & Research