by Omar Farah, staff attorney at the Center for Constitutional Rights.

Adnan Latif and Mohammed al-Hamiri arrived at Guantánamo through strikingly similar twists of fate.  Adnan Latif is the most recent of nine men – four since President Obama took office – to die in U.S. custody at Guantánamo.

Mohammed al-Hamiri is a Yemeni prisoner I have represented and visited since 2008 who remains trapped at Guantánamo, housed at the prison’s medical clinic, fighting to stave off despair.  Like all Guantánamo prisoners, he grapples daily with the haunting thought that he many never leave the island prison alive.

January 11 marked 11 years since the first of these men arrived at Guantánamo, and this week marks four years since the president’s signing an executive order mandating the closure of Guantanamo within the year.  As we observe these anniversaries, I question what, if anything, the Obama administration learned from Adnan’s senseless death. For better or for worse, the answer will say a lot about what lies ahead for Mohammed.

Both Adnan and Mohammed suffered severe injuries as boys that left them with cranial fractures.  There is a noticeable scar under Mohammed’s hairline, and he suffers from chronic headaches caused by the reconstructive metal plates in his skull.  Mohammed’s first round of treatment at the Saudi-German Hospital in Jeddah, Saudi Arabia is well documented.  The necessary follow-up treatment was financially prohibitive, so, like Adnan, Mohammed traveled to Pakistan in search of cheap medical care.

Following the U.S. invasion of Afghanistan, Mohammed was arrested in Pakistan by local police.  In that respect, his story and Adnan’s are typical.  Since the prison first opened, the government has cynically perpetuated the myth that Guantánamo prisoners were “captured on the battlefield.” Nothing could be further from the truth: the troubling reality is that in the months after September 11, the U.S. military ran a slipshod bounty system that offered handsome compensation to Afghan and Pakistani locals for turning over anyone who seemed out of place.  That is how Adnan ended up at Guantánamo, and the circumstances surrounding Mohammed’s arrest point to the same explanation.

Hooded and shackled, Mohammed was then rendered to Guantánamo in 2002.  He was just 19 or 20 years old.  Since then, he has endured more than a decade of arbitrary, indefinite detention, with no end in sight.  He has never been charged with a crime.  He never will be.  In 2009, he, like Adnan, was approved for release by unanimous consent of an Inter-Agency Task Force that President Obama convened.  The Task Force included representatives from every military, law enforcement, and national security agency with a stake in detainee affairs.  But within months, the President instituted a moratorium on transfers to Yemen, effectively rescinding Mohammed’s clearance in favor of a policy of crude collective punishment – one that bases the detention of Guantánamo’s Yemeni prisoners on citizenship alone.

The results are at once shameful and predictable:  it has been 30 months since a Yemeni has been repatriated or resettled.   Of the 166 prisoners who remain at Guantánamo, roughly 90 are from Yemen.  Fifty-six Yemenis are already cleared for transfer – 57 before Adnan died.

Death is rapidly becoming the only way out of Guantánamo.  That is the inevitable byproduct of the administration’s inaction.  It is a chilling fact that is not lost on Mohammed, who was housed in a cell near Adnan, his dear friend and countryman.  It was there, in the harsh, isolative conditions of Camp V, that Mohammed came face-to-face with the grim toll indefinite detention takes on the men at Guantánamo.  That is where his path and Adnan’s parted.  It is no wonder that Mohammed is – in his words – at a “breaking point.”

But Mohammed’s continued torment is unnecessary: President Obama has the power to free him with the stroke of a pen.  He should do so immediately, or history will not judge him kindly.  The cost of delay has never been so high or potentially irrevocable.   The president now confronts a grave moral question:  had he foreseen Adnan’s death, would he have done anything differently? For Mohammed’s sake, and for the others languishing at Guantánamo, I hope the answer is yes.

By Katherine Gallagher, Senior Staff Attorney at the Center for Constitutional Rights

One thing brings these four men together. Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani and Murat Kurnaz—they are all survivors of the systematic torture program the Bush administration authorized and carried out in locations including Afghanistan, Iraq, Guantánamo, and numerous prisons and CIA “black sites” around the world. Between them, they have been beaten, hung from walls or ceilings, deprived of sleep, food and water, and subjected to freezing temperatures and other forms of torture and abuse while held in U.S. custody. None was charged with a crime, two were detained while still minors, and one of them remains at Guantánamo.

This week, in a complaint filed with the United Nations Committee against Torture, they are asking one question: how can the man responsible for ordering these heinous crimes, openly enter a country that has pledged to prosecute all torturers regardless of their position and not face any legal action?

The Center for Constitutional Rights (CCR) and the Canadian Centre for International Justice (CCIJ) filed the complaint on the men’s behalf.

The country in question is Canada, visited last year by former U.S. President George W. Bush during a paid speaking engagement in Surrey, British Columbia. Bush’s visit drew hundreds in protest, calling for his arrest, and it also provided bin Attash, el-Hajj, Tumani and Kurnaz the opportunity to call on the Canadian government to uphold its legal obligation under the U.N. Convention against Torture, and conduct a criminal investigation against Bush while he was on Canadian soil.

To this end, the four men, submitted a 69-page draft indictment that CCR and CCIJ had presented to Canada’s attorney general ahead of Bush’s arrival in support of their private prosecution. The submission included thousands of pages of evidence against Bush consisting of extensive reports and investigations conducted by multiple U.S. agencies and the U.N. The evidence is overwhelming, not to mention the fact that Bush has admitted, even, boasted of his crimes, saying “damn right” when asked if it was permissible to waterboard a detainee – a recognized act of torture.

Canada should have investigated these crimes. The responsibility to do so is embedded in its domestic criminal code that explicitly authorizes the government to prosecute torture occurring outside Canadian borders. There is no reason it cannot apply to former heads of state, and indeed, the Convention has been found to apply to such figures including Hissène Habré and Augusto Pinochet. A criminal investigation into the allegations was the lawful thing to do. It was also what Canada had agreed to do when it pledged its support to end impunity for torture by ratifying the Convention.

But Canada looked the other way. Not only did federal Attorney General Robert Nicholson refuse to investigate Bush, but the Attorney General of British Columbia swiftly intervened to shut down a private criminal prosecution submitted to a provincial court in his jurisdiction the morning of Bush’s visit.

Thanks to the Obama administration’s call to look only “forward” – even in the face of torture that demands a proper reckoning – and a court system in the U.S. that has readily closed its doors to torture survivors, the crimes of the Bush era are effectively beyond the reach of justice in the U.S. But the immunity – the impunity – granted to these criminals here should not follow them into other countries, particularly those that are signatories to international laws and treaties against torture.

If the Convention against Torture is to have any hope of fulfilling its mission of preventing torture, the committee must send countries like Canada a clear message: it is their legal obligation to ensure there is no safe haven for torturers and any action to the contrary makes these states effectively complicit in furthering impunity for some of the worst crimes of the past decade.

These four survivors are asking the U.N. to enforce its own convention, nothing more and nothing less. They call upon the U.N., unlike Canada, to unequivocally reject a worldview in which the powerful are exempt from rules, treaties and prohibitions against senseless acts of barbarity.  Will the U.N. hear their call?

With the DOJ’s failure to prosecute the Bush Six and other torturers, Spain has a legal obligation to ensure impunity does not cross borders

Guantanamo Bay (Photo: US Army / Flickr)

It has become abundantly clear that the U.S. government has no intention to prosecute anyone within its ranks for the Bush administration’s torture program. This unwillingness underscores the urgent need for other countries to act on behalf of the global community and ensure these officials face justice. In the next couple of months, Spain will have the opportunity to do precisely that.

Ten years after the infamous ‘torture memos’ and with no prosecutions of any high-level U.S. officials, any remaining doubts about the United States’ commitment to addressing the abuses of the Bush era were put to rest by the recent announcement from the Justice Department that it would not charge anyone involved in the torture of over 100 men held in CIA-run prisons overseas, and the deaths of two men in custody.

Back in 2009, securing the outcome of this investigation before it even opened, Attorney General Eric Holder emphasized that the DOJ would not prosecute “anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”  By placing this ‘legal guidance,’ a euphemism for the infamous torture memos, outside the scope of any investigation, Holder effectively ensured that no government personnel – from the Bush administration lawyers who approved the torture program to those who implemented it – would be prosecuted for state crimes.

But the United States’ failure to investigate and prosecute its own officials’ acts of torture does not mean that these crimes will go unpunished—or that impunity will prevail.

In Spain, there is currently one open criminal investigation into the U.S. torture program.   While it is proceeding slowly, this case has a broad mandate: to examine “an authorized and systematic plan of torture and ill-treatment on persons deprived of their freedom without any charge and without the basic rights of any detainee, set out and required by applicable international conventions.”

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