The End of Guantánamo

The repatriation from Guantánamo of Salim Hamdan, a former driver for Osama bin Laden, to serve out the last month of his sentence for providing material support for terrorism in Yemen, will surely hasten the demise of the prison, as promised by President-Elect Barack Obama, even though the circumstances of Hamdan’s departure were as furtive and secretive as the long years of his detention. Speaking to the Los Angeles Times, his military defense attorney, Navy Lt. Cmdr. Brian Mizer, explained, “Attorneys should have many rights under this system, and so should an accused. But those just don't happen at Guantánamo. The way things happen in Guantánamo is that your client is whisked away in the middle of the night and you find out about it in the newspapers.”

In August, Hamdan became the first prisoner of the United States to face a war crimes trial since the Second World War, and although opponents of the system of trials by Military Commission (dreamt up by Vice President Dick Cheney and his close advisers in November 2001) maintained their disdain for the entire system, pointing out that, amongst other defects, it allowed the judge to withhold all mention of evidence obtained through coercion, the verdict in the trial was a bitter blow for the government.

Prosecutors had hoped to secure a 30-year sentence for Hamdan, who was accused of conspiracy and providing material support for terrorism, but the military jury dismissed the conspiracy charge, accepting Hamdan’s claim that he was merely a $200-a-month employee, with no inside knowledge of the workings of al-Qaeda, and sentenced him to serve just five and a half years for providing material support for terrorism. When the judge, Navy Capt. Keith Allred, allowed for time served since Hamdan was first charged, it meant that he would be free by the end of the year.

The sentence infuriated the Pentagon, which refused to rule out the possibility that it would continue to hold Hamdan as an “enemy combatant” after his sentence was served, even though this was a concept that most dictatorships would blanch at pursuing. Unwilling to acknowledge that tampering with the results of a military system of its own devising would resemble the tantrum of a small child, the Pentagon then attempted to put pressure on Capt. Allred to reconvene the jury for a new sentence, arguing that he had no right to reduce Hamdan’s sentence for time served, but on October 30, in a terse response, Allred refused to be swayed, and declared, “The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied.”

Beyond demonstrating, however belatedly, that the Bush administration is actually capable of playing by its own rules, Hamdan’s release is also enormously significant for around half the remaining prisoners at Guantánamo. Regarded, as CBS News explained on November 14, as “too dangerous to release but not guilty enough to prosecute,” these prisoners -- approximately 125 in total -- are caught between the 50 or so prisoners who have been cleared for release but cannot be freed because of international treaties preventing the return of foreign nationals to countries where they face the risk of torture, and the 80 or so regarded as significant enough to face a trial by Military Commission. 

However, although CBS News alleged that they could not be put forward for prosecution “because the evidence against them can not be used in court,” the reality is that these are prisoners against whom suspicions of militant activity or of sympathy for militant activity are largely unjustifiable because they are derived from the torture, coercion or bribery of other prisoners, or from the torture and coercion of the prisoners themselves.