Warehoused Away At Guantánamo And Never Charged With a Crime

Written by Daphne Eviatar, Director of Security with Human Rights at Amnesty International USA

Never charged with a crime but still locked away for the better part of two decades, subjected to torture at the hands of guards, finally cleared for transfer, yet still warehoused for years on end with no relief in sight.

It would be considered a travesty of justice anywhere in the United States. And yet, for five men, it is allowed to continue with the full knowledge of the American public under the authority of their own government, mainly because of where these men are being held: the military detention center at Guantánamo Bay.

This week marks the 16th anniversary of the opening of the detention center on a remote military base in Cuba. Men captured in Afghanistan and beyond, many turned over by foreign militaries, intelligence services and local warlords in exchange for thousands of U.S. dollars, were sent there for secret interrogation. Actual evidence of their wrongdoing was not required.

One of those cleared for transfer is Toffiq al-Bihani, a 44-year-old Yemeni national who has been at Guantánamo since early 2003. He was captured by Iranian authorities outside of any active conflict zone in late 2001 or early 2002 and turned over to U.S. personnel in Afghanistan in March 2002.

He has never been charged with a crime.

Bihani described his first interrogation by U.S. forces in Afghanistan this way: “I was handcuffed behind and they put a hood on my head so that I could not see anything. When I entered the interrogation room, the American guards pushed me down to the ground in a very savage manner. They started to cut my clothing with scissors. They undressed me completely and I was nude. They made me sit on a chair and it was very cold. I was also afraid and terrorized because the guards were aiming their weapons towards me. The interrogator put his personal gun on my forehead threatening to kill me.”

Bihani’s testimony is not the only proof of his ill-treatment. The Senate Select Intelligence Committee confirmed his torture.

Lacking any reason to charge him, U.S. national security agencies determined that it would be safe to transfer Bihani from Guantanamo. His family in Saudi Arabia has confirmed that they will support his return there, so he will have a stable situation to return to, where he could begin his reintegration into society. But that was eight years ago. Bihani, and four other detainees likewise cleared by the US government for transfer, remain at Guantánamo.

The plight of the five detainees cleared for transfer is just one of the many perversions of justice at the prison. Of the 800 prisoners who have passed through its gates, only 15 have ever been charged with any crimes. In 2018, 41 detainees remain, most of them without ever being charged.

The process at Guantánamo isn’t just slow, of course. It’s not working at all. Even the five detainees accused of masterminding the September 11 attacks haven’t had a trial yet. The case remains mired in pretrial hearings and arcane legal proceedings in large part because the government wants to hide the defendants’ torture in U.S. custody. Yet the US still insists these suspects deserve the death penalty.

President Trump has made his intentions regarding the prison clear. Unlike his predecessors Bush and Obama, who transferred hundreds of detainees who were never charged and determined not to pose a threat, Trump has said as recently as October that he wishes he could send more prisoners there, rather than work to try the remaining detainees in U.S. federal courts or release or transfer those with no charge. For the five cleared for transfer before he took office, time was just not on their side.

He is wrong, of course, to want to keep the prison and its inherently unfair military commissions operating at all. Guantánamo has neither provided accountability for the victims of the September 11 attacks, nor made anyone safer. Even the hardest of hardliners cannot justify holding people prisoner without charge when they pose no threat.

Bihani and his four fellow detainees must be transferred out of the prison immediately. What would never be tolerated at any other U.S. prison must not be allowed at Guantánamo. It is not a matter of mercy. It is a matter of justice.

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