I wrote the following article for the “Close Guantánamo” website, which I established in January with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.
This week, in its “Room for Debate” series, the New York Times invited six people to debate the question, “Time to End Military Tribunals?” and also to comment on whether, in his second term, President Obama should “finally close Guantánamo.”
On the one, hand, of course, there were some powerful arguments made for President Obama to drop the military commissions — especially after the recent ruling by the D.C. Circuit Court, quashing one of the only convictions in the system’s troubled history, that of Salim Hamdan — and finally fulfill his failed promise to close Guantánamo, and it was important to have these arguments made in the pages of the Times.
In “A Failed Experiment,” Andrea Prasow of Human Rights Watch stated bluntly, “The Guantánamo experiment has failed,” and added, “Those implicated in serious crimes should be prosecuted, but in time-tested judicial systems. If the president is serious about closing Guantánamo, he needs to work with Congress to lift the restrictions on transferring detainees. If Congress refuses, Obama should use his veto”– included in last year’s National Defense Authorization Act, which Tom Wilner wrote about here.
Laura K. Donohue, a law professor at Georgetown University and the acting director of the Center on National Security and the Law, followed up on this in “We the People Should Judge,” arguing that a crucial difference between the commissions and federal courts is that the latter allow the American people to be involved as jurors, and also provide a vital check on what the Founding Fathers recognized as “the dangers of placing all legislative, executive and judicial power in the same hands.”
In “Shut Down the Whole Thing,” Vince Warren, the executive director of the Center for Constitutional Rights, stated, “Guantánamo was an international symbol of lawlessness and abuse in 2008 when the newly elected President Obama promised to close it, and remains so today.” He called the commissions “an ad hoc second-class system of justice, where defendants have no right to know their accusers or even see the evidence against them and where hearsay is admissible,” and noted that President Obama “would do well to shut the whole misbegotten project down.”
However, he also recognized that federal courts “are not immune to the politics of the day,” and the problems with a system in which “[m]ost federal terrorism prosecutions involve the vague and slippery charge of material support,” in which, for Muslims, the conviction rate is, shockingly, almost 100 percent. This situation, then, would need addressing urgently if the commissions were to be shut down.
Unfortunately, in its desire for objectivity and a balanced debate — which, to be blunt, is unwise when dealing with the legacy of an administration that went out of its way to show disdain for domestic and international laws and treaties — the Times also called on three columnists to provide opposing views: Glenn M. Sulmasy, a law professor at the US Coast Guard Academy, Eric Posner, a professor at the University of Chicago Law School, and, disturbingly, Marc Thiessen, a former speech writer for George W. Bush and Donald Rumsfeld, and an unreformed advocate of the lawlessness of the Bush years.
Sulmasy argued for the need to create a new trial system in his article, “A Hybrid Court for a Hybrid Warrior,” and Posner, in “Foreign Terrorists Are Different,” called for the President to keep the commissions, although he recognized problems, noting, “Indefinite detention is increasingly difficult to sustain morally and politically, and this seems to have led the Obama administration to prefer drone strikes to captures, a questionable policy from an operational perspective, as it deprives the United States of intelligence, to say nothing of the moral issues.” He hoped that “some better system can be devised, where detainees are given stronger rights, foreign observers play a role, the standards for detention are strengthened or the period of detention is limited.”
Both of these men can at least justify their positions, whereas Thiessen, while complaining about drone strikes in his article, “No Intelligence Without Detention,” only did so to complain that the Obama administration “has prioritized killing senior terrorist leaders over taking them alive for questioning.” Thiessen claimed, “We need to question live terrorists who can tell us their plots and plans. And that means we need somewhere to take them.” On this occasion, he stopped short of explaining that he also believes that torture should then be used on these captives, but he has not always been so reticent.
Here at “Close Guantánamo,” we believe that it is important to present both sides of the story, but we also believe that the fabled “objectivity” of the liberal media has served to obscure some fundamental truths that can be swept away or ignored through presenting a supposedly “balanced” viewpoint.
The truth is that Guantánamo has been a prison mired in black propaganda from the beginning, and that those defending it need no encouragement for their unprincipled position.
The truth is that 86 of the 166 men still held at Guantánamo were cleared for release in 2009 by President Obama’s interagency Guantánamo Review Task Force — and that many of these men were also cleared for release under President Bush.
The truth is that they are still held because of failures on the part of the administration, and obstruction by Congress and the courts, and that these obstacles need to be removed so that these men can be freed, and this needs to happen as soon as possible.
Then we can look at the other 80 men, and decide which kind of trials would be best for those the Task Force recommended to be put on trial (currently around 30 of those still held), and also decide how many of those men cannot now be put on trial because of the D.C. Circuit Court’s recent ruling, overturning Salim Hamdan’s conviction for providing material support to terrorism.
When the 86 cleared prisoners are freed, we can also ask why it is considered acceptable that the rest of the remaining 80 men — 46 in total — are being detained indefinitely without charge or trial on the basis that the supposed evidence against them cannot be used in a court. That means that it is not evidence, but some unreliable ragbag of information obtained through torture and coercion, and involving multiple layers of hearsay.
First though, the 86 men cleared for release need to be released.
To create the pressure to achieve that, people need to be told why Guantánamo remains an experiment that should never have been started, and one that needs bringing to an end immediately, and they also need to be told that, on indefinite detention, as on torture, there is no “Room for Debate.”
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