The book closed on November 4, 2008, Election Day.
We have continually monitored new developments and related them on this site, as a supplement to the book.
As of July 27, 2010:
Closing Guantanamo Bay Detention Centers
President Obama announced on his second full day in office in 2009 that he would close the detention centers in Guantanamo within one year. The problems, however, had not been easy to resolve and in November 2009 President Obama admitted that he would not meet the deadline. Currently, there are 176 detainees, 70 have been released since January 2009. One of the key problems had been where to house the prisoners if and when the prison center is shut down. In December 2009, the government announced that it planned to house up to 100 detainees at the Thomson Correctional Center, a maximum security prison in northwestern Illinois near the Mississippi River and the Iowa border, and also conduct military commissions at the site. The administration, however, needed congressional approval (see number 3 below) to move the men from Guantanamo to the Illinois prison, and Congress has refused to fund the move. It is now unlikely that Guantanamo will close before election year 2012, or that the Thomson Center will ever be open for Guantanamo detainees.
- Approximately 22 of the detainees at Guantanamo, although slated for release, cannot go home or to another country until the U.S. and other countries reach agreements to accept them. In addition, many cannot return to their home countries because they would be tortured if they returned. The Uyghers from East Turkistan in China are one such group. (Please see the Updates section for more on the Uyghers.) Nations, including Ireland, Portugal, Spain, Slovakia, Germany, Belgium, France, Italy, Hungary, Switzerland, Latvia, Cape Verde, Albania, Bulgaria, Georgia and Kuwait have recently accepted additional detainees. All countries expect assurances that the detainees are not dangerous. Negotiations with countries to accept detainees have been ongoing.
- A Week after Nigerian Umar Farouk Abdulmutallab tried to bring down a plane in Detroit on Christmas Day 2009, the Obama Administration announced that it would halt transfers of detainees back to Yemen. Abdulmutallab was allegedly assisted in his attempt to blow up the plane by al Qaeda in Yemen. However, a Yemeni student, who was 18 when seized, had been cleared for release during the Bush Administration and whose habeas petition was granted in June 2010, was finally deported back to Yemen. So far, 22 Yemenis have been transferred back to their home country, while approximately 90 remain at the base.
- In October 2009, Congress agreed to allow the transfer of detainees to the U.S. mainland, but only for prosecution. Congress, however, has barred the use of any funds to release detainees into the U.S. In May 2010, the House Armed Services Committee approved legislation prohibiting the creation of a detention center in the U.S. In addition, Congress has placed restrictions on transfers of detainees to other countries, including notice to Congress and assurances that the detainee would not become a security risk.
- In November 2009, Attorney General Eric Holder announced that the government planned to prosecute 5 high-level detainees, including self-described 9/11 mastermind Khalid Shaikh Mohammed (KSM), in federal court in New York. Defendants in federal court are provided the full panoply of due process protections. However, in January 2010, New York City Mayor Bloomberg and other officials expressed serious concerns about holding the trials in NY. The administration took the cue, and it appears that the administration is backtracking, and will now prosecute the men in military tribunals.
- Attorney General Holder had announced in November 2009 that 6 other men, including Omar Khadr -- who was 15 when captured -- would be prosecuted in military commissions rather than in federal court. The commissions were to be held at the Thomson Correctional Center. However, because Congress had resisted the transfer of detainees to Illinois, the military commissions will continue to be held at Guantanamo. Preliminary proceedings in Khadr’s trial -concerning the admission of alleged confessions that Khadr made when captured – began in late April 2010. After two weeks, the hearing was delayed so that Khadr could be examined by a government psychiatrist and psychologist. In July 2010, Khadr fired his American civilian lawyers saying that he cannot receive a fair and just trial in a military commission, and intends to boycott the trial. Please see the Updates section.
- Compared to trials in federal courts, in military commissions, the defendant’s due process protections are more limited and there are fewer restrictions on the admissibility of evidence.
- It is likely that approximately 44 men – who are too dangerous to be released but who cannot be prosecuted in federal court or in military commissions because the evidence against them has been tainted or is secret and classified – will be held indefinitely. Unless they can successfully challenge their detentions through habeas petitions, the men will be held indefinitely by the military under the authority of the Authorization for Use of Military Force (AUMF) that was adopted by Congress after 9/11.
- Since the Boumediene v. Bush Supreme Court decision in June 2008, 36 detainees have succeeded in their habeas challenges: that is, after due process hearings, federal judges ordered their release. However, not all of them have been released. The U.S. and the habeas lawyers are appealing some of these cases and in one instance the D.C. Circuit Court of Appeals overturned a district court decision granting habeas, while in another instance the court of appeals overturned a decision denying habeas. The U.S. must also negotiate with countries to take the men. The administration has won 14 habeas rulings, where federal judges ruled that the detainees could continue to be held.
- In January 2010, the Court of Appeals for the District of Columbia Circuit upheld a lower court’s denial of the release of Yemini prisoner Ghaleb Nassar al-Bihani. However, the two very conservative judges who composed the majority of the three-judge court added that the international laws of war do not restrict the government’s detention power and are not a source of authority for U.S. courts. In addition, they said that the scope of authority of the AUMF is not limited by international law. The majority wrote its decision despite the fact that the Hamdan v. Rumsfeld 2006 Supreme Court decision recognized that Common Article 3 of the Geneva Convention applied to the detainees, and that the justices in the Hamdi v Rumsfeld 2004 Supreme Court decision recognized international law as a relevant source of law in interpreting the AUMF.
Bagram Air Base Prisoners
In January 2010, the government -- in response to a lawsuit filed by the ACLU -- released the names of the approximately 645 detainees who are currently held at the main detention center at Bagram Air Base, north of Kabul in Afghanistan. The lawsuit still seeks information on the capture and confinement of the prisoners.
In May 2010, the Red Cross confirmed the presence of a secret prison at Bagram. Former prisoners describe being held in isolation and subject to abuse at the “black jail.”
The administration is considering expanding its operations at Bagram by using that facility to detain suspects captured outside Afghanistan. However, in late April 2010, Aljazeera reported that the U.S. military is negotiating with other governments to take the foreign, non-Afghan, prisoners currently held at Bagram. The U.S. military had agreed to transfer the Bagram prison to Afghanistan by the end of the year.
The Court of Appeals for the District of Columbia ruled in May 2010 that foreign nationals held at Bagram are not entitled to challenge their detentions in habeas hearings in U.S. courts. Thus, for now, the Boumediene decision does not extend to detainees held in military bases overseas.
Prosecutions of CIA Agents and Contractors
In August, 2009, the administration released a CIA Inspector General’s Report detailing CIA torture techniques. (The report was first issued in secret in 2004.) Following the release of the report, Attorney General Eric Holder hired federal prosecutor John Durham to investigate whether to bring charges against CIA agents and contractors who brutally mistreated detainees. However, Holder’s mandate to Durham is narrow at the moment. That is, CIA agents may be able to use the cover of Department of Justice memos issued by John Yoo and others to justify torture during the Bush Administration.
In November 2009, an Italian court convicted CIA agents for kidnapping an Egyptian cleric in Italy and transporting him to Egypt where he was tortured under America’s extraordinary rendition program. (Please see the Updates section.)
Creating Truth Commissions
In February 2009, Senator Patrick Leahy, Chair of the Senate Judiciary Committee proposed a truth commission to investigate Bush administration practices during the War on Terror. House Judiciary Chair John Conyors had proposed a similar truth commission weeks earlier. Although a truth commission can be a start, many human rights advocates believe that a truth commission should not be the end in assessing accountability of the Bush administration. If we are to demonstrate to the world that Americans truly believe in the rule of law, we must go further and prosecute the high-ranking Bush administration officials who were involved in the torture of the detainees (please see the Updates section) and who otherwise violated American law. We must also send a message to future leaders of our nation that if they violate American law, they will be punished.
Witness to Guantanamo Project
Professor Honigsberg’s “Witness to Guantanamo” Project(W2G) – please see witnesstoguantanamo.com -- is videotaping in-depth interviews of over 100 Guantanamo detainees around the world with the goal of documenting systematic human rights abuses and rule of law violations at Guantanamo. The project will archive the interviews. The project also intends to interview other witnesses to Guantanamo, including translators, habeas lawyers, guards, prosecutors, JAG attorneys and military officials.
W2G began its pilot project in August 2009, interviewing 16 men in five countries – Albania, Bosnia, France, Germany and England. Each interview was 2+ hours in length, in a narrative format. (Please see the Huffington Post piece describing a few highlights of the interviews.) W2G Article on first interviews.
The W2G project continued in the Pacific island of Palau when the project filmed interviews of the Uyghurs during January 2010. Professor Honigsberg’s article on the Uyghurs in Palau appears in the Huffington Post. Stateless Pawns in the Global Game of the Superpowers.
Video clips of several interviews, including clips of detainees and other witnesses to Guantanamo, appear on www.witnesstoguantanamo.com.
On Memorial Day weekend in 2010, the project interviewed 3 Uyghurs in Bermuda. In spring 2010, the project also interviewed a number of other witnesses, including a translator, prison guard, former Chief prosecutor, habeas attorneys, JAG attorney and military officials.
Witness testimony about the transgressions at Guantanamo will educate the public and mobilize pressure to hold U.S. government officials and private actors accountable for human rights abuses and violations of U.S. and international law. Memory building will prevent denials of Guantanamo in the future and prevent the repetition of the U.S. policies and practices that allowed the rule of law to be violated. The Witness to Guantanamo project is for future generations. (An early description of the project appears in Honigsberg’s initial piece on the project in the Huffington Post. Note that the name of the project has changed since he wrote that article).
Debating John Yoo
In 2005, Professor Honigsberg debated Professor John Yoo, one of the authors of the torture memos. A short piece on the event is posted on the HuffPost: “I Debated a War Criminal.”
Visiting Guantanamo
Professor Honigsberg visited Guantanamo in May 2007. An article describing the visit, as well as the bizarre application process, will appear in the Nevada Law Journal in spring 2010. A draft of the article appears at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1374546.
