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When Fear Eclipses Justice, We All Lose: Shutter Guantanamo Now

The US intransigence on Guantanamo issue is counterproductive, as it only serves to stoke animosity and contempt.

Eleven years into their incarceration at Guantanamo Bay, many desperate detainees are exerting what little control they still exert over their lives: they are refusing to eat. As word of the hunger strikes began trickling out of the prison in February, lawyers for the detainees became increasingly alarmed at the harrowing conditions their clients were reporting. Even now a vast discrepancy separates the official story and what numerous counsels have witnessed and heard firsthand from their clients.

According to various detainees, the roots of the resistance originated when the prison authorities seemed to revert to their pre-Obama levels of brutality. Cells were searched, family photos and other cherished, tangible reminders of life before Guantanamo were confiscated and harsh treatment ensued. Perhaps more upsetting to detainees was that Qurans were rifled through in a manner detainees had repeatedly denounced as desecration of their holy book. The justification centred on arguments that such searches were necessary security measures, though detainees were reportedly willing to surrender their Qurans instead of having them subjected to search, while observing that hiding items in the Quran would violate their religious practices.

The protest over regressive practices quickly spread however, and soon came to coalesce resentment, hopelessness and pent up frustration for the indefinite confinement and the agonising roller coaster on which these men have been involuntary riders. According to some reports, among the hunger strikers are the detainees that were most compliant in the past, evincing their growing despair. Obama's election rhetoric suggested that he understood the travesty of Guantanamo. His earlier speeches, in which he vowed to close Guantanamo, raised hopes that the US would respect the rule of law. More recently, Obama has signalled his vanishing commitment, making no reference to Guantanamo in his 2013 inaugural speech in January or his State of the Union address the next month. Obama also reassigned Daniel Fried, the envoy tasked with resettling Guantanamo detainees, and has not replaced him.

Of the original 779 detainees, 609 have been transferred and 9 have died. Of those, 72 were transferred in 2009 during the first year of Obama's tenure, as compared with 532 transferred under Bush. Very few detainees have been transferred in the past three years, even though 86 of the remaining 166 detainees have been cleared for transfer by a special task force comprised of national security experts from the Departments of Justice, State, Defense and Homeland Security, the Office of Director of National Intelligence, and the Joint Chiefs of Staff. Detainees are understandably despondent. One justification for ongoing detention is that released detainees would return to the battlefield. Implicit in such a statement is the misconception that the detainees were all on the battlefield in the first place. According to the government's own report, a staggering 92 percent of detainees were never al-Qaeda fighters in the first place. Admittedly, 11 years of detention could engender profound resentment, but prolonging these conditions serves no one.

Perhaps Obama underestimated the challenge of changing the national narrative that all Guantanamo detainees posed a grave danger to the US. Conversations about Guantanamo detainees often elicit a visceral response premised on the erroneous and damaging assumption lingering after all these years that those remaining in Guantanamo are surely nefarious men, even if the US cannot prove it. It is convenient to overlook the fact that the US military commissions, considered illegitimate even in their reconstituted form, offer detainees no meaningful opportunity to defend themselves, or even be apprised of the reasons for their detention. This stubborn refusal to reconcile fear with the facts is borne of the deep psychic injury inflicted by 9/11, which made Americans feel vulnerable on our own soil.

Yet the truth about the majority of Guantanamo's remaining detainees is starkly different. While 20 or so "high value" detainees remain at Guantanamo, more than half of the detainees have been cleared by the US government for transfer. Of those cleared or already released, it is well known that the majority of these men were erroneously detained. Many were offered up to US forces or their allies by their compatriots for the generous bounty promised by the US government in widely distributed leaflets - 86 percent of the detainees were apprehended this way, according to one report. Of those collecting the bounty, some were presumably driven by desperate circumstances, although a few may have been honestly mistaken, and others may have been motivated by nothing more than greed. Also among those detained is a large contingent of Yemenis who the Obama administration refuses to repatriate because of the inherent instability of their native country and not because of the risk they pose.

Obama presents himself as hamstrung by the posturing of Congress, who encumbered the National Defense Authorization Act with provisions clearly intended to make the shuttering of Guantanamo extremely difficult and the transfer of detainees a very risky political proposition. Congress correctly assumed that Obama would not expend the political capital necessary to manoeuver around the carefully crafted restrictions on transfer. The fiscal costs are also enormous - the Pentagon recently requested funds for a new building at an estimated cost of $49m. The price tag for the continued detention of the 86 detainees cleared for transfer is $69m per year.

US intransigence on this issue is counterproductive, as it only serves to stoke animosity and contempt for the country that holds itself out as the beacon of freedom and moral authority in the world. As President Obama himself eloquently stated, holding men without trial in horrific and dehumanising conditions of confinement does not make the US safer: he said in a 2009 speech that "we uphold our most cherished values not only because doing so is right, but because it strengthens our country and keeps us safe", and continued by recognising that "rather than keep us safer, the prison at Guantanamo has weakened American national security. It is a rallying cry for our enemies". Obama repeatedly promised that he would not allow this injustice to fester, yet more than four years after his first inauguration, there is no end in sight for Guantanamo.

According to lawyers for the detainees, after almost two months of striking, the health of the men is deteriorating rapidly, and others are already in critical condition. Medical experts warn that long-term hunger strikes can cause severe and irreversible physiological and neurological damage, which is compounded by the psychological distress of indefinite detention and isolation. An unconfirmed number of detainees are prepared to die, and may in fact prefer death to living their remaining years within the confines of Guantanamo. The US can and must act: if it has any hope of regaining its moral authority, these men should not be reduced to a despair so profound that they feel their only way out of Guantanamo is in a coffin.

Lauren Carasik

Lauren Carasik

Lauren Carasik is a Clinical Professor of Law and the Director of the International Human Rights Clinic and the Legal Services Clinic at Western New England University School of Law.

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