Yesterday, on September 11, as the world remembered the dreadful terrorist attacks on New York City and Washington, DC 12 years ago, it is time also to remember that, in its response to those attacks, the US embarked on a dangerous flight from the law that led to the use of torture and indefinite detention without charge or trial. At Guantanamo and Bagram, these policies have, to this day, left hundreds of men stranded without access to justice.
When the Bush administration responded to 9/11 by invading Afghanistan, a month after the attacks, one of the first victims of the "War on Terror" was the Geneva Conventions. Under Article 5 of the Geneva Conventions, if there is any doubt about the status of prisoners seized in wartime - whether they are combatants or civilians seized by mistake, for example - "competent tribunals" of military officers must be convened close to the time and place of capture, with the power to call witnesses to ascertain whether the prisoners are combatants or not.
In the first Gulf War, in 1991, US soldiers captured 1,196 men of unknown provenance, held competent tribunals, and concluded that in 886 cases civilians had been seized by mistake - an error rate of 74 percent. Those men were then released, but after 9/11 the competent tribunals were abandoned.
End of competent tribunals
The Bush administration arrogantly declared that all those who ended up in US custody were "unlawful enemy combatants", and, on February 7, 2002, President Bush issued a memorandum, "Humane Treatment of Taliban and al-Qaeda Detainees", in which he stated that the Geneva Conventions did not apply to al-Qaeda or Taliban prisoners, although all prisoners would be "treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva".
That was a rhetorical fig leaf, which failed to prevent the memorandum from opening the floodgates to the use of torture - a situation that prevailed until June 2006, when, in Hamdan v. Rumsfeld, a case challenging the legality of the Bush administration's military commission trial system, the Supreme Court reminded the president that Common Article 3 of the Geneva Conventions - which prohibits torture and "humiliating and degrading treatment" - applied to all prisoners.
That ended the contortions used by the Bush administration to justify its use of torture, although no one has been held accountable for its use. But the Bush administration's disdain for the Geneva Conventions continues to poison the circumstances in which prisoners are held, both at Guantanamo and at Bagram, the main prison in Afghanistan, where Bush's innovations led to a situation in which the process of screening prisoners on capture disappeared.
As part of the dangerous innovations introduced by George W Bush and fundamentally continued under Barack Obama, Article 5 tribunals in Afghanistan were replaced by review processes that took place up to 18 months after capture and which, predictably, had no precedent and also led to the long imprisonment of large numbers of prisoners who should never have been held. This, of course, was profoundly counter-productive when it came to winning the hearts and minds of the Afghan people.
The review processes were designed to lead to the prisoners' release, ongoing detention, or transfer to the Afghan authorities. But the decisions were not always followed up on, as at Guantanamo.
In legal limbo
Renamed and rebuilt as the Parwan Detention Facility, Bagram was handed back to Afghan control a year ago, on September 10, 2012, allowing the US to avoid further responsibility for most of its actions. Yet the Obama administration has continued to hold 67 non-Afghan prisoners, some seized as long ago as 2002 in other countries, and rendered to Bagram when the use of "extraordinary rendition" was widespread. Some of these men are described by the US authorities as al-Qaeda operatives. Yet others have been cleared for release, as at Guantanamo, but are being held nevertheless.
In 2009, three of these men had their cases heard by a judge in Washington, DC District Judge John D Bates, who ordered that they should have habeas corpus rights, like the prisoners at Guantanamo, because their cases were essentially the same. That decision, however, was overturned following an appeal by the Obama administration, leaving the men in a legal limbo that has still not been resolved, a year before major combat operations in Afghanistan are due to end.
Both at Guantanamo and Bagram, a major problem from the beginning was that the US had not only failed to screen prisoners to ascertain who they were, but had also muddied the waters further by receiving most of its prisoners from its Afghan and Pakistani allies, at a time when the use of bounty payments was widespread - with payments averaging $5,000 a head for foreigners who could be passed off as al-Qaeda or Taliban suspects.
Instead of addressing this adequately, however, the Bush administration set about justifying the unjustifiable at Guantanamo, in its Afghan prisons and in the "black sites" run by or on behalf of the CIA, through interrogations in which torture and other forms of coercion were used, along with bribery or simply grinding prisoners down through relentless interrogations, until they began telling their interrogators what they wanted to hear. In one particular case, a single prisoner made false or untrustworthy allegations against at least 120 of his fellow prisoners.
The result, predictably, was an intelligence operation of extraordinary worthlessness, composed to an alarming degree of false statements made by prisoners about their fellow prisoners, although that has never been officially admitted.
Under both Bush and Obama, the men at Guantanamo have been used by administration officials, lawmakers, lawyers, judges, and assorted pundits as pawns in a political game - still portrayed as the "worst of the worst" by those who cling to the hysterical rhetoric of the early days of the "War on Terror", and not adequately represented by those in power and authority who should recognise what a monstrous injustice Guantanamo is.
Continuation of an injustice
Unfortunately, Obama and his administration have located themselves in this camp. By refusing to hold Bush administration officials accountable for their crimes and their dangerous mistakes, the president and his advisors have failed to puncture the distorted rhetoric relating to Guantanamo. They have allowed the impression to remain that its inmates may be dangerous, even though only a few dozen, at most, of the 164 men still held have ever been subjected to allegations of involvement with terrorism. Eighty-four of them were cleared for release in January 2010 by the inter-agency Guantanamo Review Task Force that Obama established when he first took office.
These men are still held in part because of legislation passed by fearful or cynical members of congress, using Guantanamo to keep Americans scared, but also because Obama has been unwilling to spend political capital overcoming lawmakers' restrictions.
In response to a prison-wide hunger strike that the prisoners began in February, and subsequent interest and outrage both at home and abroad, Obama promised to resume releasing prisoners from Guantanamo in a major speech on national security issues on May 23. Nearly four months later, however, just two men have been released.
Twelve years after the 9/11 attacks, it is time for President Obama to take bolder steps to free the remainder of the cleared prisoners at Guantanamo, to charge or release foreign prisoners still held at Bagram, and to take the necessary steps to ensure that the prison at Guantanamo Bay will be closed.