Worthington writes (see original for links):
What is also of interest, however, as an example of the many distortions engendered by Guantánamo, is the fact that there are 12 other Afghans at Guantánamo — none of whom is regarded as being as significant as the men mentioned above — but who will continue to be held, possibly forever, even if successful negotiations involving their more-significant compatriots resume.
This, sad to say, is a disgrace, as the reasons for the continued detention of the 12 men … are far from compelling. It is clear that, if they had been held in Bagram instead of having been transferred to Guantánamo, they would have been released by now. They include three men who … have lost their habeas corpus petitions — although none of the three can seriously be regarded as a threat.
… The first of the three, Shawali Khan, whose habeas petition was denied in September 2010, was a shopkeeper who seems, quite clearly, to have been falsely portrayed as an insurgent by an informant who received payment for doing so. To add further shame to the ruling, the right-wing judges of the D.C. Circuit Court refused his appeal last September, apparently consigning him to Guantánamo forever.
Next up was Obaydullah (aka Obaidullah), who faces allegations that he “stored and concealed anti-tank mines, other explosive devices, and related equipment”; that he “concealed on his person a notebook describing how to wire and detonate explosive devices”; and that he “knew or intended” that his “material support and resources were to be used in preparation for and in carrying out a terrorist attack.” Despite there being no actual evidence against him, he lost his habeas petition in October 2010.
The third man, Karim Bostan, a preacher and a shopkeeper, was seized on a bus that traveled regularly between Afghanistan and Pakistan, and was reported to have been “apprehended because he matched the description of an al-Qaeda bomb cell leader and had a [satellite] phone,” which he had apparently been asked to hold by a fellow passenger, Abdullah Wazir (who was released from Guantánamo in December 2007). Other allegations were made by Obaydullah, who said in Guantánamo that he had made false allegations (and had also falsely incriminated Bostan) while he was being severely abused by U.S. soldiers in Khost and Bagram. Despite that, Bostan’s habeas petition was denied in October 2011.
Those are not the only insignificant prisoners still held. Another poor man, Abdul Ghani, who scavenged for scrap metal, was put forward for a trial by military commission under George W. Bush in 2008. The authorities claimed that he had played a part in attacks and planned attacks as part of the insurgency against U.S. forces, although his lawyers have disputed his supposed involvement. The charges against him were dropped before Bush left office and have not been reinstated, but he remains held, with no end to his detention in sight.
Similar — and still held — is Mohammed Kamin, accused of spying and planting mines, who was put forward for a trial by military commission in March 2008, although that also never materialized; the charges against him were dropped in December 2009.
Regarding those abandoned Afghan prisoners, the most significant development recently was that the case of one of them, Obaydullah, was discussed in an article in the New York Times, in which Charlie Savage realized, as mentioned above,It is an accident of timing that Mr. Obaydullah is at Guantánamo. One American official who was formerly involved in decisions about Afghanistan detainees said that such a “run of the mill” suspect would not have been moved to Cuba had he been captured a few years later; he probably would have been turned over to the Afghan justice system, or released if village elders took responsibility for him.Despite that, the Justice Department is still maintaining that he “was plainly a member of an al-Qaeda bomb cell” and is determined to continue holding him, possibly forever. What that gains the United States, at a cost of nearly $800,000 a year, is unclear, unless it is simply to save face. Certainly, anyone with knowledge of the detention situation in Afghanistan and Guantánamo would agree with the U.S. official mentioned above, who explained that, had he been seized at a later date, Obaydullah would have been held in Bagram, and would, by now, have been a free man. Moreover, it is clear that this also applies to most of the other “run of the mill” Afghan prisoners still held.
Apologists for the current manager of this evil system will say, "Oh, Obama tried to close Guantanamo, but those mean old Republicans wouldn't let him." The truth, of course, is that Obama completely and wholeheartedly embraced the gulag system set up by Bush, extending its reach in Afghanistan and elsewhere, and defending it ferociously against all legal challenges. His plan called only for the transfer of Guantanamo's illegally held captives to other facilities, while shutting down the Cuban camp as a meaningless PR gesture.
To the degree that he actually was "thwarted" in this empty plan by the Republicans (and the many Democrats who joined them in opposing it), this was precisely because he wanted to retain and strengthen the gulag principles established by Bush. He wanted to keep these prisoners -- and many others -- in the limbo of "indefinite detention," and perpetuate the arbitrary power to plunge countless others into the system. Thus in many ways, the opponents were correct: if you are going to continue the system of indefinite detention, why not just leave them where they are? Closing one gulag hole doesn't mean anything if you are simply going to transfer prisoners -- many of whom had literally been sold into captivity -- to another hole.
There were several other alternatives; Obama chose -- presumably deliberately -- the one most likely to be blocked. But the Guantanamo captives are military prisoners, held by the military, under military rules. Obama is the commander-in-chief of the armed forces; he could have declared that the system itself was unjust and freed every prisoner who could not be tried for an actual crime in an actual court. (There would have been very few if any of these, of course, as the systematic use of torture, over the course of a long, illegal detention, would have tainted almost all the "evidence" that could be used in court, and rightly so.) Any captive legitimately considered an actual military prisoner under the actual laws of war could have been placed in any one of the hundreds upon hundreds of military bases around the world.
All of this could have been done within the bounds of the existing imperial system itself. It would not have required any kind of unimaginable radical break. It would not have required Obama to be some kind of utopian hero of progressive ideals. It would not have required him to end the Terror War, or stop drone bombing innocent people around the world, or quell the relentless, inexorable spread of the militarized security state into every facet of life. He could have gone on doing all the things that he and his morally lobotomized champions believe make him look "tough." It simply would have been one action that he could have taken within the existing political system which would have mitigated, to some degree, a vast, evil injustice that serves no "security" purpose whatsoever but has demonstrably worsened the security of people all over the world by supplying an endless grist of atrocity to feed the mills of anger that produce violent radicalization.
Of course, Obama would have to have been an entirely different person to pursue even this small degree of mitigation. So it was never going to happen; after all, a man willing to kill his own citizens outside any pretense of the law certainly doesn't care what happens to some unimportant foreigners languishing in his gulag. But the fact remains that it was -- and is -- entirely within his power to resolve these injustices, even within the existing system and the existing political context -- if he wanted to. The story endlessly repeated by his partisans -- that only Republican intransigence prevents him from doing anything about it -- is just a lie.