On the tenth anniversary of the 9/11 attacks, the world is a fundamentally different place, one in which indefinite detention without charge or trial has been accepted in the United States for those labelled as terrorists, people who cannot be tried in federal courts because they are considered ‘warriors’ in a war on terror that many in power do not wish to see ended. Americans can be spied on with impunity by their government and, if abroad, assassinated without any legal process, while those who authorised torture remain unpunished, even though their actions violated US federal statutes.

The anniversary also marks two years and eight months since Barack Obama became the President of the United States promising, in a number of executive orders, to close the prison at Guantánamo Bay within a year, to uphold the universal ban on torture and to close any ‘black sites’ still operated by the CIA. While the President has arguably made a substantial break with his predecessor on torture and black sites, he has failed miserably to close Guantánamo. It now seems possible that Guantánamo will never close, and that the majority of the men still held there (171 as of June 2011) will remain for the rest of their lives.

To understand what has gone wrong, it is necessary to return to the origins of the war on terror.

The key document is the Authorization for Use of Military Force (AUMF), passed by Congress in the week after the 9/11 attacks. It authorised the president ‘to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons’.

This unspecific and open-ended document was followed, in swift succession, by a Justice Department memo on 26 October 2001 justifying the warrantless surveillance of US citizens and the passage of the USA PATRIOT Act. As well as enabling law enforcement agencies to investigate telephone and email communications, and medical and financial records, the PATRIOT Act facilitated foreign intelligence gathering within the US, expanded the Secretary of the Treasury’s ability to impose financial sanctions, and broadened the powers of law enforcement and immigration authorities to detain and deport US residents.

Following the 9/11 attacks, at least 1200 Muslims were rounded up and imprisoned in the US for questioning, and many US residents were deported. As the program began, few knew that seizing people for interrogation would become a key part of the war on terror.

The prison in the US naval base at Guantánamo Bay, Cuba, opened on 11 January 2002, exactly four months after the 9/11 attacks. Its location was chosen specifically because the Bush administration intended those held to be permanently beyond the reach of the US courts, so that they could be interrogated for ‘actionable intelligence’. This would, if necessary, involve illegal coercion, which partly explained why the prison had to be located on territory outside the law. Guantánamo, leased from the Cubans, was perfect since, technically, it was under Cuban sovereignty, even though its running was in US hands.

The AUMF had authorised the president to detain terrorist suspects (an interpretation confirmed by the Supreme Court in June 2004 in Hamdi v Rumsfeld), although president Bush also asserted that he had the right to do whatever he felt necessary as Commander-in-Chief – and that this power was beyond review. Such ideas had not come from Bush himself but from his vice-president, Dick Cheney, and the war council of lawyers working for him – his legal counsel, David Addington; a lawyer in the Justice Department’s Office of Legal Counsel (the department within the Justice Department that is obliged to render impartial legal advice to the Executive Branch), John Yoo; White House counsel, Alberto Gonzales; his deputy, Tim Flanigan; the Pentagon’s general counsel, William J Haynes II; and his deputy, Daniel Dell’Orto.

In November 2001, Cheney and his team issued, with almost no oversight, the presidential memo known as Military Order No 1, which asserted that those seized under the AUMF could be ‘detained at an appropriate location designated by the Secretary of Defense outside or within the United States’, and establishing military commissions for those whom the administration wished to try. The system of military trials had last been used for Nazi saboteurs in the Second World War; its revival in the war on terror was solely to provide for swift trials, free of mainstream US legal influence, in which convictions and executions could be easily arranged.

The last element of the evolving war on terror came on 7 February 2002 when, despite criticism from, among others, Secretary of State Colin Powell, President Bush issued an executive order that the Geneva Conventions did not apply to those detained in the war on terror. If any single document opened the floodgates to torture, it was this. By October 2002, Donald Rumsfeld was implementing a torture program – euphemistically termed ‘enhanced interrogation techniques’. The program was intended for Mohammed al-Qahtani, presumed to be the intended twentieth hijacker on 9/11, but was then applied to other prisoners – as many as one in six at Guantánamo, according to a former official who spoke to the New York Times in 2004.

The techniques, derived from a military program (SERE – Survival, Evasion, Resistance, Escape), were originally used to teach US personnel to resist interrogation if captured, and included prolonged isolation, sleep deprivation (often via what was known euphemistically as the ‘frequent flier program’ in which prisoners were moved from cell to cell every few hours for days, weeks or even months), extreme temperature manipulation, enforced nudity, short-shackling in painful positions (often until prisoners soiled themselves), the use of extremely loud music and white noise, and sexual and religious humiliation. It later transpired that the techniques were very possibly Rumsfeld’s response to another, more secretive, program run by the CIA, which had begun with a top secret presidential finding immediately after the 9/11 attacks that authorised the CIA to detain terrorists and set up detention facilities outside the United States.

This document has never been publicly released but it is clear that it authorised ‘extraordinary rendition’ – the transportation of prisoners to other countries to be tortured. These included Jordan, Egypt, Morocco and Syria – and, in turn, the Bush administration authorised the CIA to establish its own prisons, first in Thailand, and then in Poland, Romania and Lithuania, where a number of ‘high-value detainees’ were subjected to a torture program justified and approved by John Yoo and his boss in the Office of Legal Counsel, Jay S Bybee, in what are now known as the ‘torture memos’. The CIA also maintained several facilities in Afghanistan, including the ‘Dark Prison’, the ‘Salt Pit’ and a secret facility separate from the main US prison at Bagram airbase.

Between its inception and May 2005, the ‘high-value detainee’ program involved ninety-four prisoners, twenty-eight of whom were subjected to the most brutal forms of ‘enhanced interrogation’, as principal deputy assistant attorney general Steven Bradbury explained in a secret memo in May 2005 (unclassified in April 2009). No statistics have been provided for those sent to other countries for ‘enhanced interrogation’ but in a speech before the Council on Foreign Relations, on 7 September 2007, General Michael Hayden, the director of the CIA, claimed that less than a hundred people had been rendered abroad to foreign prisons. In his exact words, the number was ‘mid-range two figures’.

While this was, essentially, the program that President Obama ordered to be ended when he came to power, it is probable that it had already been shut down, since president Bush had lost a major battle in the Supreme Court in June 2006 in Hamdan v Rumsfeld, with the court ruling that the Geneva Conventions applied to all prisoners held in the war on terror. By September 2006, the program was largely abandoned when fourteen ‘high-value detainees’, including the alleged 9/11 mastermind Khalid Sheikh Mohammed, were brought to Guantánamo from secret CIA prisons.

The US government has never explained what happened to all of those prisoners. The most extensive analysis available is one I undertook for the United Nations in 2009, but the Obama administration has shown no interest in explaining exactly who was held, or what happened to all but the forty or so prisoners who passed through a variety of secret prisons and ultimately ended up in Guantánamo.

With the administration pursuing (as President Obama announced even before he took office) a policy of looking forward rather than backward, no details of the program have been unveiled after the court-ordered release of the ‘torture memos’ in April 2009, and every attempt to seek accountability has been rebuffed. In January 2010, David Margolis, a veteran fixer in the Justice Department, was allowed to suppress the conclusions of a four-year internal investigation into John Yoo and Jay S Bybee that had established that the authors of the ‘torture memos’ were guilty of ‘professional misconduct’. Margolis concluded instead that they had merely exercised ‘poor judgement’.

Another option for accountability, in a case brought by five former victims of rendition against a Boeing subsidiary, Jeppesen Dataplan Inc., was blocked when the Obama administration cynically employed the little-known and little-used ‘state secrets doctrine’ to prevent any scrutiny in court of anything to do with national security. The government secured victory in an appeals court in September 2010, and persuaded the Supreme Court not to examine the case in May this year.

The lack of accountability remains a sore point for those opposed to the Bush administration’s brutal innovations and its disregard for the law, but Obama, at least, turned his back on torture, even if he replaced the Bush administration’s detention and interrogation program with drone killings in Pakistan and claimed that he was at liberty to assassinate US citizens abroad without any kind of review process (as asserted in respect of the US-born radical cleric Anwar al-Awlaki, who lives in Yemen).

In Afghanistan, Obama has failed to repudiate the actions of his predecessors, with the Geneva Conventions still largely peripheral to the detention policies in the main prison at Bagram airbase. Prisoners are not adequately screened on capture, and are then held for an unspecified amount of time before being subjected to a cursory review process (inherited from Guantánamo) that does not, of course, feature in the Geneva Conventions.

On Guantánamo, moreover, Obama has persistently failed to deliver on his promises. Sidelining the validity of the prisoners’ habeas corpus petitions (which had been authorised by the Supreme Court in June 2008 in Boumediene v Bush), he put together a Guantánamo Review Task Force, consisting of around sixty career officials and lawyers in government departments and the intelligence agencies. After a year reviewing the Guantánamo cases, the task force concluded in January 2010 that, of the 240 prisoners held when Obama took office, 126 should be released (transferred to the custody of their home governments or, in a few cases, to the custody of other governments), thirty-six should be put on trial, and forty-eight should continue to be held indefinitely without charge or trial. In addition, thirty Yemenis were placed into a newly invented category – ‘conditional detention’ – which meant that they would be released only if the US authorities concluded that the security situation in Yemen had improved to their satisfaction.

The biggest problem with the task force’s conclusions was the decision that forty-eight men should continue to be held indefinitely, on the basis that they were too dangerous to release but that none of the evidence against them would be sufficient to secure victory in a trial. It was a further sign of how fear-mongering and political expediency had infected the review process, dashing the hopes of human rights activists that Obama would either release prisoners or try them in federal court.

Another issue was the decision to revive the military commission trial system, which had been a farcical failure, securing only three dubious victories under president Bush – in the cases of David Hicks, who accepted a plea deal that led to his repatriation; Salim Hamdan, a driver for Osama bin Laden, who was a free man in Yemen five months after his trial; and Ali Hamza al-Bahlul, an al-Qaeda propagandist, who received a life sentence after a one-sided trial in which he refused to mount a defence.

The biggest problem, however, was with the release of prisoners. Obama released sixty-seven between February 2009 and January 2011, including thirty-eight who were released in countries other than their home countries because they faced the risk of torture if repatriated. These countries included China, Egypt, Libya, Syria, Tunisia and Uzbekistan. The countries which took these former prisoners, in order to help President Obama close Guantánamo, were Albania, Belgium, Bermuda, Bulgaria, Cape Verde, France, Georgia, Germany, Hungary, Ireland, Latvia, Palau, Portugal, Slovakia, Spain and Switzerland.

It was generous of them to help, because the US conspicuously refused to do anything to address the problems it had created. One particularly unfortunate group, the Uygurs (Muslims from China’s oppressed Xinjiang province), had been seized by mistake after crossing into Pakistan from a rundown settlement in which they had been living in Afghanistan, and had won their habeas corpus petition in October 2008. The Bush administration had appealed, however, and Obama’s Justice Department maintained the same position, with the result that the appeals court sided with the government, leaving the Uygurs stranded in Guantánamo. White House Counsel Greg Craig then conceived a plan to bring a handful of the seventeen remaining Uygurs to live in the US but, when Republicans got wind of it and began complaining, President Obama backed down, the first of many capitulations.

In January 2010, after a Nigerian man, allegedly recruited in Yemen, tried and failed to detonate a bomb in his underwear on a flight to Detroit on Christmas Day 2009, Obama bowed to criticism and issued a moratorium forbidding the release of any more Yemenis, leaving twenty-nine men recommended for transfer stuck in the prison, where they remain to this day. The release of cleared prisoners who fear being repatriated to other countries has also ground to a halt, leaving another thirty men, whom the government does not wish to hold any longer, still in custody.

Furthermore, lawmakers in Congress have worked assiduously – and unconstitutionally – to derail the President’s plans, passing legislation withholding funds to buy a prison on the US mainland to replace Guantánamo, preventing the transfer of any prisoner to the mainland to face a trial or to be imprisoned, and imposing restrictions on the countries to which prisoners can be released. The result is that, twenty months after President Obama’s failed promise to close Guantánamo within a year, it seems that the prison will never close, unless there is a renewal of the concerted international criticism that wounded President Bush during his second term.

Ten years after 9/11, it is particularly bleak that so many men remain in Guantánamo – and not just those whom the government no longer wishes to detain. At the heart of the Bush administration’s war on terror was a fatal confusion whereby soldiers were equated with terrorists, and all were deprived of their rights and held as ‘enemy combatants’.

This confusion – denying rights as prisoners of war to soldiers, and refusing to regard terrorist suspects as criminals to be tried in federal courts – reached its saddest expression in October 2010 when Omar Khadr, a Canadian citizen and former child prisoner seized at the age of fifteen after a firefight in Afghanistan, was tried by Military Commission. In order to secure a sentence of eight years, Khadr was obliged to agree to a plea deal in which he acknowledged killing a US soldier with a grenade (even though that remained disputed) and accepted that he was an ‘alien unprivileged enemy belligerent’ whose very presence on a battlefield facing US forces constituted a war crime, even though that war crime had been invented by Congress.

Khadr is not the only soldier detained as though terrorism and military conflict were one and the same. Many of those still held, including the majority of the two dozen or so prisoners who have lost their habeas corpus petitions, are nothing more than foot soldiers for the Taliban. No-one in a position of authority has ever wanted to address this confusion and, after the prisoners won thirty-two out of forty-one cases in court because the judges found that the government had failed to demonstrate that they were involved with either al-Qaeda or the Taliban (largely because they exposed the government’s reliance on unreliable witnesses), the appeals court intervened.

Since January 2010, the court has issued rulings chipping away at the District Court’s decisions, and finally reaching a position whereby little more than suspicion is required to continue holding prisoners, even if they were mere soldiers. Until this confusion is addressed, and until most of the prisoners are released (in the US, if necessary) and the few dozen prisoners regarded as genuinely dangerous terrorist suspects are prosecuted in an internationally recognised court, Guantánamo will remain open, and will continue to mock any pretension that the United States represents anything fair or just, or has any right to talk about human rights.

Nothing less than this, and the full reinstatement of the Geneva Conventions in war zones, will suffice to restore America’s disfigured reputation. Then the other outstanding problem – that torturers at the highest levels of the US government have been allowed to walk free – can also be addressed.