Of the 166 current prisoners, only 10 are charged with or have been convicted of a crime. Fear of being left to die in prison without ever being charged is the underlying cause of a hunger strike that broke out on Feb. 6 and that at times has claimed the participation of over 100 detainees. Around half the prisoners are still refusing to eat.
Many of the strikers are being force-fed. One prisoner said of the experience: "I am tortured in the restraining chair when they fill my belly with Ensure. All my limbs are restrained and my clothes soaked from vomiting the formula mixed with water and laxatives." The force-feeding policy has been condemned by Amnesty International, the National Religious Campaign Against Torture, and the president of the American Medical Association. The World Medical Association has declared that "force feeding is never ethically acceptable."
The case of Shaker Aamer, detained without charge for over 11 years, highlights the absurdity of current policy. He has been cleared to leave, and Britain's Prime Minister David Cameron personally raised the case with President Obama last month at the G8 summit, urging Aamer's release to his family in London. But Aamer remains in Guantanamo. He is on hunger strike and being force-fed.
Some Americans assume that all 166 prisoners are terrorists, but the facts reveal otherwise. A total of 779 prisoners have been sent to Guantanamo, of whom 604 have subsequently been transferred (almost all of them now free). Nine have died in custody. The Obama administration says it has no intention of charging 132 of the remaining 166 prisoners. As noted, 156 of the 166 prisoners have not been charged. Compounding the injustice is the fact that 86 of the 166 prisoners were cleared for transfer over three years ago.
Who are the prisoners? Vice President Cheney declared that "they were the worst of a very bad lot … devoted to killing millions of Americans." But Major General Michael Dunlavey, chief of intelligence operations at Guantanamo, was told in February 2002 that as many as half of the initial detainees had little or no intelligence value. Lawrence Wilkerson, chief of staff to Secretary of State Colin Powell, has written that several administration leaders became aware early on "that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released."
There were egregious errors. Pentagon officials concluded in 2002 that a German detainee named Murat Kurnaz was not tied to terrorist activity, yet he was detained and tortured in Guantanamo for an additional four years. U.S. authorities seized Lakhdar Boumediene in Bosnia, accusing him of a plot to blow up the U.S. embassy. After he endured nearly seven years of detention and harsh treatment in Guantanamo, the government dropped the bomb plot allegation, instead citing an unnamed informant to claim that Boumediene planned a trip to Afghanistan to fight the United States. A U.S. judge, finding that the reliability of the informant could not be established, ordered Boumediene's release.
The sole charge against one detainee was that he was conscripted into the Taliban, served as a cook's assistant to Taliban forces, and fled bombardment by the Northern Alliance. Incredibly, the Guantanamo detainee population included five individuals who had been imprisoned as spies by the Taliban.
In the words of a bipartisan report on detainee treatment commissioned by the Constitution Project, "there can be no argument today about the fact that many people were held in custody for no reasonable security reason."
We should recall that of the more than 600 prisoners transferred to other countries, the vast majority have recovered their freedom and are leading peaceful lives. A few have engaged in terrorist activity, but their number has been exaggerated by misleading and poorly sourced government reports.
Why does our government continue to detain over 100 prisoners it has no intention of charging with a crime, including the 86 cleared for transfer? Both Congress and the president bear responsibility.
Upon taking office, Obama announced his intention to close Guantanamo within a year. But in a May 2009 speech, he made clear that his idea of "closing Guantanamo" would allow unjust detention practices to continue. He would transfer Guantanamo detainees to the U.S. mainland, but still hold several of them in indefinite detention without charge or trial.
Then, in December 2009, a Nigerian man who reportedly had received terrorist training in Yemen tried to blow up an airplane bound for Detroit. Yielding to demands from Congress, Obama announced that he was stopping the transfer of any prisoners to Yemen. The ban, a form of collective punishment, effectively trapped the 89 Yemeni prisoners (56 of whom had been cleared for transfer).
Last May, Obama announced his intention to lift the moratorium on returning prisoners to Yemen. But Congress had previously acted to impede prisoner releases. Beginning in January 2011, it placed restrictions on the transfer of Guantanamo prisoners to other countries, regardless of their personal guilt or innocence.
The legislation sets up a certification process that can be used to authorize some transfers and permits a national security waiver for potentially authorizing others, but Obama waited two and a half years before using these powers to transfer any detainees. Last week, his administration announced its intention to transfer two prisoners to Algeria.
Both the president and Congress can end this calamity. Congress should repeal legislation restricting the transfer of Guantanamo prisoners. New transfer provisions proposed by the Senate Armed Services Committee for inclusion in the 2014 National Defense Authorization Act are a step in the right direction, and should be publicly supported by Washington's senators, Maria Cantwell and Patty Murray. Obama should use the certification process and national security waivers to transfer uncharged prisoners, beginning with the 86 already cleared to leave. With our urging, the government can bring this shameful chapter of American history to a rapid close.
Jamie Mayerfeld is a professor of political science and faculty associate of the Center for Human Rights at the University of Washington. He serves as faculty adviser to the University of Washington chapter of Amnesty International.
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