Sep 11, 2009
Today, as we pause to remember those who died in the terrorist attacks in the US on 11 September 2001,
we should also remember that much work still needs to be done to
address the fallout from the Bush administration's extraordinary
response to the attacks.
In Guantanamo, 225 men remain
imprisoned, ostensibly in connection with these attacks, or with the
"war on terror" that followed, even though, in all but a few dozen
cases, they have never been charged with any crime, and only one man (Ali Hamza al-Bahlul) has been tried and convicted.
Two outstanding problems remain with Guantanamo. The first concerns the few dozen prisoners
accused of involvement with the 9/11 attacks or other acts of
international terrorism. As a result of the Bush administration's
cavalier approach to the law, and its senseless and illegal approach to
the use of torture, these men are still held without a trial date in
If the Bush administration had treated 9/11 as a criminal
act, and had built a criminal case against these men rather than
torturing them in a network of secret prisons, they would probably have
been tried and sentenced by now. As it is, however, only Ahmed Khalfan Ghailani
has been put forward for a trial in a federal court, and the government
plans to pursue other cases using a revamped version of the military commissions introduced by President Bush, which are damaged beyond repair.
bring justice to these men - and for justice to be seen to be done -
President Obama needs to pursue these cases in federal courts, knowing
that no jury will fail to convict them if the government can produce
any genuine evidence. The relatives of those who lost their lives on
9/11 deserve nothing less.
For the other prisoners at Guantanamo,
the situation is more complicated. In June 2008, the US supreme court
ruled that they had constitutionally guaranteed habeas corpus rights. Since then, the district courts have granted 29 out of 36 habeas appeals,
deriding the government for relying on dubious informers within
Guantanamo, multiple levels of hearsay and weak "mosaics" of evidence,
and dealing a mortal blow to the Bush administration's allegations that
Guantanamo held "the worst of the worst".
These are unsurprising
results, given that prisoners were never adequately screened (either on
capture, or in the years since), and that many were sold to US forces for bounty payments averaging $5,000 a head.
prisoners' situation is further complicated by the fact that an
interagency Guantanamo Task Force, established to review their cases
and decide on their future, is effectively competing with the courts,
even though it operates in secret and has only led, so far, to the release of a handful of prisoners.
even in the courts, problems remain with the government's definition of
the prisoners. The courts are obliged only to consider whether the
government has demonstrated, "by a preponderance of the evidence", that
the men were connected to al-Qaida and/or the Taliban. As a result, judges have ruled, in other cases,
that marginal characters in the inter-Muslim civil war between the
Taliban and the Northern Alliance (which morphed into a war against the
US after 9/11) can continue to be held.
I believe that, after
eight years, it is time to examine whether it is plausible to continue
holding men in connection with a "war on terror" that - despite being renamed by Obama
- still seems to be regarded as a conflict that may go on forever, even
though the specific conflict in which these men were captured - the
overthrow of the Taliban - ended in November 2004, when Hamid Karzai
was elected as the Afghan president.
Beyond Guantanamo, other problems remain. Obama is clinging to claims
that foreign prisoners rendered to the US prison at Bagram - seized in
similar circumstances to those at Guantanamo who were subjected to
"extraordinary rendition" - can continue to be held without access to
lawyers. In addition, Afghan prisoners in Bagram, who should be held as
prisoners of war, according to the Geneva Conventions, still seem to be
regarded as assets for whom rights are secondary to their perceived
Hovering over all these problems are even
darker issues - the fate of the hundreds of men held in secret CIA
prisons or rendered to other countries, and the long road to accountability
for those who implemented these policies - but as the most bleakly
iconic symbol of the Bush administration's response to 9/11, Guantanamo
remains the most obvious challenge to Obama's stated ambition to "regain America's moral stature in the world".
the eighth anniversary of 9/11, however, justice is being delivered
neither to those regarded as genuinely dangerous, nor to those whose
significance has been exaggerated.
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