The Pentagon's latest estimate says roughly 20 percent of the 560 detainees released from the Guantanamo Bay Detention Center are believed to have returned to the terror front lines — a nearly 50 percent increase from the Pentagon's April estimate of 14 percent and nearly double the 11 percent estimate issued in January of 2009.
WASHINGTON – A Guantanamo Bay detainee says he feels abandoned by President Barack Obama and the world after more than 10 years at the U.S. prison.
"I believe that President Obama must be unaware of the unbelievably inhumane conditions at the Guantanamo Bay prison, for otherwise he would surely do something to stop this torture," Yemeni prisoner Musa'ab Omar Al Madhwani wrote in a federal court declaration this year.
About a month later, Obama renewed his vow to close the U.S. detention center in Cuba, but acknowledged one key obstacle: "It's a hard case to make because I think for a lot of Americans, the notion is `out of sight, out of mind."'
Al Madhwani is a strong example of the political thicket that Obama faces as he makes another run at fulfilling a 2008 campaign promise to close the prison -- or at least transfer some detainees back to their countries. For one, Al Madhwani is from Yemen, and the administration has prohibited the transfer of Guantanamo detainees to that country since January 2010 because of security concerns after a would-be bomber attempted to blow up a U.S.-bound airliner on instructions from Al Qaeda operatives in Yemen.
For another, Al Madhwani already has lost a court challenge to his detention, despite the judge's conclusion that he was not a security threat to the U.S. Of 26 documents the government relied on containing statements Al Madhwani had made at Guantanamo, U.S. District Judge Thomas Hogan in Washington threw out 23, concluding they had been tainted by coercive interrogation by U.S. forces prior to his arrival at the Cuban prison.
That taint would make it difficult to convict Al Madhwani in a civilian court, or even a military tribunal, increasing the odds that Al Madhwani will remain in the limbo of indefinite detention. Many other detainees are in the same situation. To date, only two prisoners have been convicted in a trial by military tribunals at Guantanamo, and both were reversed by the federal appeals court in Washington (although one remains under review). The five other convictions of Guantanamo prisoners came through plea bargains.
In Obama's first week in office, he signed an executive order to close Guantanamo, but Congress has used its budgetary power to block detainees from being moved to the U.S. On Saturday, Attorney General Eric Holder criticized what he called Congress' "unwise and unwarranted restrictions on where certain detainees could be housed, charged and prosecuted."
"Throughout history, our federal courts have proven to be an unparalleled instrument for bringing terrorists to justice," Holder told law school graduates of the University of California, Berkeley. "They have enabled us to convict scores of people of terrorism-related offenses since Sept. 11."
Like most of the 166 prisoners remaining at Guantanamo, Al Madhwani is participating in a hunger strike to protest his detention and prison conditions. "Indefinite detention is the worst form of torture," wrote Al Madhwani, who is in his 11th year at the prison and has never been charged with a crime.
The judge said he found Al Madhwani's testimony about harsh treatment at the hands of U.S. forces in Afghanistan prisons to be credible.
"Before Guantanamo, he had endured 40 days of solitary confinement, severe physical and mental abuse, malnourishment, sensory deprivation, anxiety and insomnia," Hogan said. But the judge ruled that statements Al Madhwani made during two military administrative hearings at Guantanamo were reliable and sufficient to justify holding him, because he had been "part of" Al Qaeda.
Still, the judge seemed to come to that conclusion reluctantly.
"As a young, unemployed, undereducated Yemeni, Petitioner (Al Madhwani) was particularly vulnerable to the demagoguery of religious fanatics," Hogan wrote in the January 2010 opinion. He was "at best, a low-level al-Qaida figure."
Last month, a Constitution Project task force on detainee treatment, concluded that the U.S. engaged in torture in treatment of suspected terrorists. The high-profile task force listed Al Madhwani's case as an example of court findings of evidence of torture and abuse. The Constitution Project is a nonpartisan Washington-based thinktank.
Of the prisoners remaining at Guantanamo, 86 have been cleared for transfer to other countries, but Al Madhwani isn't one of them. That "really causes us to scratch our heads, because we believe, of all the people we've met, he's as harmless as any of them," said Al Madhwani's lawyer Darold Killmer, who also represents some detainees who have been cleared for transfer.
This year, Al Madhwani filed a motion in the D.C. federal court for humanitarian relief, claiming that Guantanamo officials had shown "deliberate indifference" to his medical needs. Hogan denied the motion, ruling that federal law bars him from reviewing claims about an enemy combatant's conditions of confinement.
In support of his failed motion, Al Madhwani wrote:
"Both of my parents have died during the time that I have been in prison in Guantanamo Bay. They were waiting for me to come home and now they are gone. I am afraid that my entire family will be dead before I am released from this prison. ... I have no reason to believe that I will ever leave this prison alive. It feels like death would be a better fate than living in these conditions."
Lt. Col. Todd Breasseale, a Defense Department spokesman, said the U.S. remains in armed conflict with Al Qaeda, and that the Authorization for Use of Military Force, which Congress passed after the Sept. 11, 2001, attacks, allows for the detention of enemy forces.
While the U.S. has prosecuted some detainees, he said, it isn't obligated to conduct trials while hostilities continue.
Al Madhwani insisted he's done nothing against the U.S. and never would.
"But if anyone believes that I have done anything wrong, I beg them to charge me with a crime, try me and sentence me. If not, release me."
Obama expressed the same sentiment two weeks ago when he said: "The idea that we would still maintain forever a group of individuals who have not been tried -- that is contrary to who we are, it is contrary to our interests, and it needs to stop."