President Barack Obama's first executive order after taking office was to close the US detention center in Guantanamo. But the US Congress blocked all prisoner transfers, and nothing happened. No other broken promise has disappointed Obama's supporters as much as that one.
A few weeks ago, the president announced once again that he intended to shut down the camp, and he appointed prominent Washington attorney Clifford Sloan to lead the closure effort. But it seems doubtful that he will succeed this time around, given that Republicans and Democrats can't seem to agree on much of anything these days.
In fact, Guantanamo is growing at the moment, at least as far as personnel is concerned. Currently, 104 of the 166 detainees are on a hunger strike, with some having abstained from eating for weeks. Forty are being force-fed. Additional guards and medical personnel were needed as a result, and there are currently 1,950 people now working for Joint Task Force Guantanamo.
The American Medical Association opposes the practice of force-feeding, calling it inhumane, while Democratic Senator Dianne Feinstein has said that those who want to die should be allowed to die. The reality is that it's not the preservation of a life but it's the preservation of existence. By keeping these people there the Obama's administration has already killed their soul and their spirit, and taken away their dignity. The official motto of the camp reads: "Safe, humane, legal and transparent." But the curse of Guantanamo cannot be removed with an appealing motto.
The 166 remaining detainees, of an original total of about 800, are kept in four tracts. Camps 5 and 6 are the "most attractive and best-smelling" prisons. It's even possible to visit them, but not Camp 7, which was built for the 14 so-called high-value detainees. It is a secret camp, and not even its location is officially known. The defendants are driven in white vans from Camp 7 to the courtroom every day.
Some 86 detainees who are apparently innocent could have been freed long ago. But the US Congress has blocked their release, arguing that they could return to their native countries and plan future terrorist attacks. Another 46 men are to be detained "indefinitely." They are considered dangerous, but the military lacks sufficient evidence to put them on trial. Only six detainees have been charged with crimes. And it is likely that many of the remaining 34 detainees will never stand trial.
To date, there have only been pre-trial hearings in the case against the presumed 9/11 co-conspirators. They began a year ago, and the court has been in session just five times since then. It will be quite some time before the actual trial begins. And even then, it is unclear whether the men, who inflicted the greatest trauma on America in recent history, will receive a fair trial.
The system is prone to arbitrariness, as three examples from last week illustrate. First, a court sketch artist was deprived of her magnifying glass, which she had been using for years and which helped her recognize faces. Then, a diagram this journalist was drawing in his notebook outlining the locations of people sitting in the courtroom was confiscated temporarily. Finally, two attorneys of one of the defendants were briefly detained as they attempted to visit a movie theater. These are experiences from a world controlled by the military.
The military commission system is not a fair system. It is designed to keep evidence secret. The consideration of mitigating circumstances, such as the fact that the CIA abducted and tortured the defendants, is necessary to prevent the imposition of the death penalty. But these torture programs are classified as secret, and they can only be discussed in a court session closed to both the public and the defendants. The attorneys are not even permitted to discuss with their clients the statements they made while being tortured. And the reports on those sessions are also secret.
For the attorneys, it is almost impossible to communicate freely with their clients in Guantanamo. Telephone conversations are monitored, and legal pleadings have been searched through in the defendants' cells. For this reason, the attorneys visit their clients in person to discuss confidential information. But they have sometimes not been allowed to bring in notes, and surveillance equipment was also recently found in the booths where they meet.
Moreover, it emerged that live transmissions of the hearings can be censored without the knowledge of the presiding judge. During a discussion in January, for example, an alarm suddenly went off, and the sound in the visitors' gallery was shut off by an intelligence agency. Even the judge was outraged.
And last week, cross-examinations involving members of the military commissions and the detention center showed that the CIA played an indirect role in writing many of the rules that limit the ability of attorneys to communicate with their clients. One rule, for example, bars attorneys from sending their clients material discussing jihadism -- even as their clients are being charged with jihadism.
The prosecution did not seem happy with these revelations and kept mentioning national security.
The hearings are agonizing. They revolve around the formal procedures of this specially created tribunal, not the actions of the defendants. The trials should be held in a federal court in the United States, where there is over 200 years of experience. In the military commissions, everything is starting from scratch and creates a system where few cases have ever been decided and which is very much prone to error. But Attorney General Eric Holder's plan to try the five men in a court in New York failed in early 2011, in the face of a public outcry.
Even if Clifford Sloan managed to close Guantanamo, the trials of many of the presumed 9/11 co-conspirators would probably be held in the same court on another US military base on the mainland. One attorney even says that the many procedural errors could result in a mistrial and the continued detention of the defendants.
By Guylain Gustave Moke
World Affairs Analyst