Vol. 75/No. 6      February 14, 2011

In one of his first acts as president in January 2009, Obama pledged to shut down the prison within one year. The administration also halted any new charges against inmates beyond the 29 who had been charged under the previous administration of George W. Bush.

Five prisoners have been convicted under the military tribunal system, three under Bush and two under Obama. The last was Omar Khadr, a Canadian captured in 2002 during a battle in Afghanistan when he was 15 years old. Following a plea bargain, he was sentenced to an additional year in Guantánamo, after which he faces seven more years in a Canadian prison.

The Obama administration has sought to win congressional support to try some Guantánamo prisoners in civilian U.S. courts, arguing that convictions and harsh sentences could be assured in civilian trials. Broader use of secret evidence and other denials of constitutional protections would also be further established in the U.S. courts.

The administration publicly disregarded presumption of innocence for accused Guantánamo inmates. During a television interview in November 2009 Obama declared that opposition to civilian trials will diminish after Khalid Sheikh Mohammed, then slated for trial, is convicted and put to death. Mohammed is “going to meet his maker,” declared White House Press Secretary Robert Gibbs several months later.

Charged by a military commission in 2008, some five years after his capture, Mohammed has yet to face either civilian or military trial.

Ahmed Ghailani, the only Guantánamo inmate to be tried in a U.S. court, was sentenced January 25 to life in prison for the 1998 bombings of U.S. embassies in Kenya and Tanzania. The debate in the U.S. ruling class on civilian versus military trials sharpened after Ghailani’s conviction last November in which he was found guilty of only one of the 285 charges against him and the judge blocked testimony from a prosecution witness obtained by torturing Ghailani.

Following Ghailani’s conviction, the majority-Democratic Congress moved to block further civilian trials and, as part of a war spending bill, banned the use of federal funds to either transport Guantánamo prisoners to the United States or build a facility to hold them. Obama criticized the restriction when he signed the bill in early January.

Now the White House is planning to allow new cases to be brought to military commissions and has begun working up new procedures for the tribunals, officials told the Times. Three detainees are likely to face tribunals in the near future, including Abd al-Rahim al-Nashiri, who lawyers say was tortured at secret CIA prisons in Thailand and Poland prior to his transfer to Guantánamo.

The administration is also drafting an executive order that will establish a legal framework for indefinite detentions, affecting some four dozen prisoners.

Currently there are 173 inmates at Guantánamo, 72 fewer than when Obama took office. Dozens slated for trial have been stuck in Guantánamo as politicians haggle over how to best ensure convictions and further undermine constitutional and other legal protections of the accused.

At the same time, many more languish without charges of any kind. Dozens have been “cleared for release” by the Pentagon, including about 30 Yemeni prisoners whose release was blocked by executive order following the Dec. 25, 2009, failed bombing attempt of a U.S. flight by a Nigerian man who was allegedly trained in Yemen. Scores more remain incarcerated simply because no government, including the United States, is willing to take them.

Meanwhile, some 1,400 prisoners are held at the U.S. Parwan detention facility at the military base in Bagram, Afghanistan. Approaching maximum capacity, the prison is being expanded to hold 3,200.

After Washington handed over responsibility for prisoners it held in Iraq to the government there, those without some alleged basis for charges were released. Preparations for handing over responsibility for prisoners to the Afghan government are taking a different course. “If we turned them over to the Afghans tomorrow, they’d be in a position under their laws and their constitution that they may be released,” a top official told the Washington Post.

The Afghan government is now discussing setting up a legal framework for indefinite detentions ahead of any transfer.  
 
 
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