Years ago, two men named William Jent and Earnest Miller were sentenced to death in Florida, only to be granted a new trial when evidence emerged, previously suppressed by the prosecution, pointing to their innocence. However, unwilling to admit his mistake, the District Attorney demanded that both should plead guilty in exchange for a sentence of 'time served', and their liberty. As they left the courthouse, one remarked on the irony: "When I said truthfully that I was innocent, they sentenced me to death; today, when I said I committed the crime, they set me free."
Once I thought that such Orwellian moments were rare in the US justice system. Now I know better: indeed, they define Guantánamo Bay. Last week, the US government de-classified a list of 55 men who have been cleared for release for at least three years. To this we must add a further 30-odd Yemenis who have been "conditionally cleared" - the stipulation being that their home country must undergo an Arab Spring before the US will recognize that the men are no threat to democracy. Overall, 52% of the detainees in Guantánamo Bay have been cleared for release, but they remain under lock and key. Surely, Aleksandr Solzhenitsyn never met a gulag in Soviet Russia where rather more than half the prisoners had publicly been declared to be innocent?
Compare this to four prisoners who were allowed to plead guilty in the Guantánamo military commission - unkindly compared to a "kangaroo court" by Britain's former lord chief justice, Tom Bingham. (The unkindness is to the animal, of course.)
Ibrahim al Qosi pled guilty to being Usama Bin Laden's cook. Earlier this year al Qosi went home to Sudan, a country that the US insists is run by an international war criminal who committed genocide in Darfur. Before that, Salim Hamdan pled guilty to being Bin Laden's driver. He was repatriated in 2008 - paradoxically to Yemen, now prohibited to his concededly innocent compatriots. Earlier still, David Hicks pled guilty to conspiring with Bin Laden to commit terrorism. He was sent to Australia where he served a total of nine months before he was liberated.
Last week, after pleading guilty to committing murder in Bin Laden's cause, Omar Khadr was sent back to Canada with an eight year sentence, and he will be eligible for parole next year. The 15 year old Khadr was prosecuted solely because he survived the US attack on the house where he was staying. Photographic evidence raised serious doubts that he could have thrown the grenade that killed US soldier Christopher Speer. Regardless, he should have come under the protection of the UN Convention on the Rights of the Child on the involvement of children in armed conflict. Instead, the US made him the first child in modern history to be tried for his role in war. (After all, Cardinal Ratzinger was never hauled to Nuremberg for joining the Hitler Youth; they made him Pope...)
Khadr's legal team understood that he had a much greater chance of getting out if he pled guilty, rather than maintaining his innocence. And they were right. It would do no good to suggest that statements by him and other witnesses had been abused out of him; that is an embarrassing secret that the Obama Administration would rather remained in the dark.
I have known for years, of course, that eleven of the men I currently represent have long been cleared for release. But the list of detainees cleared in 2009 by the Obama Administration after an "exhaustive" review was "protected" information that I was not permitted to disclose. How was the security of the United States threatened by this information? Well, it would be embarrassing, for one thing, to be unfavourably compared to a Soviet gulag.
And why the change of heart last week? The government notice lifting the designation states that "the efforts of the United States to resettle Guantánamo detainees have largely been successful".
Try telling that to the 86 men who have been approved for release. The self-laudatory language signals that the US no longer wants to expend political capital on finding homes for the innocent men it snatched from the relative sanctuary of a Pakistan or Afghan asylum. For Reprieve clients like Abu Wa'el Dhiab this is absurd. Dhiab is from Syria. The US government apparently thinks that he should stay in Guantánamo until the rebels finally topple the Assad regime - notably without aid from America.
Even this will not be sufficient. The Arab Spring finally swept through Tunisia more than a year ago, but the five Tunisians (including two of my clients) remain securely in their prison cells. So there is another condition to liberty: post-revolution, the US must be convinced that democracy has firmly taken root.
Despite these American obstacles, there is no reason why at least one prisoner could not be sent home tomorrow. Shaker Aamer, the only British resident remaining in the Gitmo Gulag, has been cleared for five years now. Britain last had a revolution in 1688, and has a rather mature democracy. The British government has called for his return. The US has acknowledged that Shaker is innocent, and has a home and a family in the UK. Yet still he languishes.
My advice to Shaker, when I saw him last month, was to make up a story that he worked for Bin Laden. Perhaps Shaker would like to be the Bin Laden butler, or the man who shone the Bin Laden shoes? And when he returned to his cell, I suggested that he share my legal advice with the other cleared detainees: somewhere in the Gitmo Camps, I feel sure, we will find the Bin Laden butcher, the Bin Laden baker, the Bin Laden candlestick maker.
Pleading guilty to something that he did not do may be the only way out for Shaker and his colleagues. That, or a coffin. Last month, another of the Yemeni detainees, Adnan Latif, committed suicide. He was the ninth man to die in the prison. As hopelessness and depression overcomes the men who remain, it will not be long before there is a tenth - and soon, sadly, a bakers dozen.
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