On December 22, during a largely self-congratulatory news conference by President Obama, dealing with a number of achievements notched up in the last session before the Democrats lose control of the House of Representatives (including the new START treaty, on arms control, and the repeal of “don’t ask, don’t tell”), one of the administration’s conspicuous failures — the failure to close Guantánamo — was only touched upon at the end of the news conference, when Mike Emanuel, the White House correspondent for Fox News, asked a question that followed up on a recent report in the Washington Post.
In that report, published on Tuesday, Obama administration officials explained that they were close to finalizing an executive order that “would formalize indefinite detention without trial for some detainees at the US military prison at Guantánamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration.”
The men in question — 48 of the remaining 174 prisoners — were designated for indefinite detention without charge or trial during a year-long review of the Guantánamo cases conducted last year by the Guantánamo Review Task Force, established by President Obama on taking office, and consisting of “more than 60 career professionals, including intelligence analysts, law enforcement agents, and attorneys, drawn from the Department of Justice, Department of Defense, Department of State, Department of Homeland Security, Central Intelligence Agency, Federal Bureau of Investigation, and other agencies within the intelligence community.”
The Task Force also approved the release of 90 of the remaining prisoners, and proposed trials for another 33, but it was the proposal to indefinitely detain 48 of the men that caused the most consternation to everyone who had hoped that the Obama administration would fully repudiate the Bush administration’s detention policies in the “War on Terror,” and would either charge or release all the prisoners inherited from the previous regime.
One of the officials who spoke to the Post attempted to justify the proposed executive order, explaining that a review may take place every year, and asking, “When the review panel puts someone in the category of long-term detention, the 48 people, what happens then? Are they there for the rest of their lives? What’s the review mechanism? How impartial is it? Do they have a chance to contest it? All of that stuff has to be answered. And we have been working on an executive order laying out these elements.”
To be fair, some sort of review process, involving lawyers, is better than a process in which prisoners designated for indefinite detention without charge or trial are given no opportunity to contest the Task Force’s decision, but as Laura W. Murphy, director of the American Civil Liberties Union’s Washington legislative office, told the Post, “Indefinite detention without charge or trial is wrong, whether it comes from Congress or the president’s pen. Our Constitution requires that we charge and prosecute people who are accused of crimes. You cannot sell an indefinite detention scheme by attaching a few due-process baubles and expect that to restore the rule of law. That is bad for America and is not the form of justice we want other nations to emulate.”
Just as worrying is the fact that the Task Force’s review process conflicts with another process established before Obama assumed office — the habeas corpus petitions submitted to the District Court in Washington D.C., in which judges (independent of the government, it should be noted) have been able to review the prisoners’ cases, and have been able to order the release of prisoners who have won their petitions (in 38 out of the 57 cases so far decided), even though those rulings have not always led to the prisoners’ actual release — in general, because the government has appealed, and the conservative D.C. Circuit Court is inclined to find reasons to support ongoing detention.
The Post’s article noted, “Detainees at Guantánamo would continue to have access to the federal courts to challenge their incarceration under the legal doctrine of habeas corpus,” but it is distressing to note that the Obama administration seems always to have favored its own review process to that of the courts, and the following claim in the Post’s article — that “the plan would give detainees who have lost their habeas petition the prospect of one day ending their time in US custody” — is, frankly, disingenuous, because, as noted above, the administration has a track record of appealing successful petitions, and there is, therefore, no reason to presume that senior officials would have any interest in a review process that would lead to the release of prisoners who have lost their petitions.
President Obama has not yet reviewed the proposal, of course, but I thought it was worth examining what he had to say about Guantánamo at his news conference, as the failure to close Guantánamo is particularly troubling so near to the ninth anniversary of the prison’s opening. I have inserted my responses to what he had to say in the body of the text.
Mike Emanuel: Guantánamo, sir. I understand a draft of an executive order is being prepared for you, and I don’t expect you to comment then on that –
President Obama: Right.
Mike Emanuel: It hasn’t gotten to you yet.
President Obama: Yes.
Mike Emanuel: But it makes me wonder where you are, sir, at about the two-year mark on Guantánamo, when closing it was one of your initial priorities, sir?
President Obama: Obviously, we haven’t gotten it closed. And let me just step back and explain that the reason for wanting to close Guantánamo was because my number one priority is keeping the American people safe. One of the most powerful tools we have to keep the American people safe is not providing al-Qaeda and jihadists recruiting tools for fledgling terrorists.
And Guantánamo is probably the number one recruitment tool that is used by these jihadist organizations. And we see it in the websites that they put up. We see it in the messages that they’re delivering.
And so my belief is that we can keep the American people safe, go after those who would engage in terrorism. And my administration has been as aggressive in going after al-Qaeda as any administration out there. And we’ve seen progress, as I noted during the Afghan review.
Every intelligence report that we’re seeing shows that al-Qaeda is more hunkered down than they have been since the original invasion of Afghanistan in 2001, that they have reduced financing capacity, reduced operational capacity. It is much more difficult for their top folks to communicate, and a lot of those top folks can’t communicate because they’re underground now.
My analysis: There’s little to analyze here. Before beginning to answer the specific question about the proposed executive order, Obama laid out his stall as the President who is tough on terrorism, and threw in what seems to be the administration’s major explanation for why Guantánamo should be closed — because it is “the number one recruitment tool” for terrorists, and not because its continued existence is an abiding stain on America’s reputation.
President Obama: But it is important for us, even as we’re going aggressively after the bad guys, to make sure that we’re also living up to our values and our ideals and our principles. And that’s what closing Guantánamo is about — not because I think that the people who are running Guantánamo are doing a bad job, but rather because it’s become a symbol. And I think we can do just as good of a job housing them somewhere else.
My analysis: It’s interesting that Obama now concedes that his primary interest in closing Guantánamo concerns “housing [the prisoners] somewhere else,” rather than putting them on trial. It is also apparent that the prison is more than just a symbol, as I mentioned above. It is not just a symbol of ongoing injustice, but is actually a concrete manifestation of injustice, and of the durability of the Bush administration’s malignant rewriting of international laws and treaties.
President Obama: Now, to the issue you had about the review. You’re right, I won’t comment right now on a review that I have not received yet. I can tell you that over the last two years, despite not having closed Guantánamo, we’ve been trying to put our battle against terrorists within a legal structure that is consistent with our history of rule of law. And we’ve succeeded on a number of fronts.
One of the toughest problems is what to do with people that we know are dangerous, that we know have engaged in terrorist activity, are proclaimed enemies of the United States, but because of the manner in which they were originally captured, the circumstances right after 9/11 in which they were interrogated, it becomes difficult to try them whether in an Article III court or in a military commission.
My analysis: The situation faced by the 48 prisoners designated for indefinite detenton without charge or trial by the Guantánamo Review Task Force is a topic that I dealt with extensively when the Task Force’s report was published, and I quote from that extensively below, to explain why it is worth questioning the Task Force’s conclusions. What is particularly noticeable about Obama’s comments, however, is the way in which his mention of “the manner in which they were originally captured, the circumstances right after 9/11 in which they were interrogated,” cannot disguise that what the President is talking about is the use of torture.
For a full range of my opinions aout the decision to hold 48 men indefinitely without charge or trial, the following passages are from my article, “Does Obama Really Know or Care About Who Is at Guantánamo?” which was published in June this year (and I have amended the numbers of habeas cases mentioned accordingly):
The irony — that indefinite detention was exactly what President Bush had established in the first place — was not lost on the [Task Force] members, who made a point of attempting to stifle criticism as follows: “[T]he principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainees was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum.”
According to the Task Force, these “fundamental evidentiary and jurisdictional limitations” related to the circumstances of the prisoners’ capture, and perceived problems in prosecuting them either in federal courts or in military commissions.
On the first point, the Task Force explained that, because “[t]he focus at the time of their capture was the gathering of intelligence and their removal from the fight,” they “were not the subjects of formal criminal investigations, and the evidence was neither gathered nor preserved with an eye toward prosecuting them.” This made the circumstances of their capture — largely at the hands of the US military’s Afghan and Pakistani allies, at a time when bounty payments were widespread — sound less chaotic than it actually was, and it also disguised the kind of treatment to which they were subjected during “the gathering of intelligence.”
With this in mind, it is no more reassuring to read the Task Force’s assessment of the quality of the intelligence services’ reports used to establish the significance of these 48 prisoners. The Task Force attempted to explain that “the intelligence about them may be accurate and reliable,” but “for various reasons may not be admissible evidence or sufficient to satisfy a criminal burden of proof in either a military commission or federal court.”
The “various reasons” were not explained, but reading between the lines, what this rather bland but conditional statement demonstrates, with its prominent use of the word “may,” is that the intelligence relied upon as evidence will probably not stand up to any kind of genuinely objective scrutiny, and the reasons for this are inadvertently revealed in the final line of the paragraph dealing with the “evidentiary limitations.”
“One common problem,” the Task Force wrote, “is that, for many of the detainees, there are no witnesses who are available to testify in any proceedings against them.” Here the use of the possible witnesses’ availability is something of a smokescreen, disguising a blunter truth: that the intelligence, and whatever witness availability there might be, are both tainted by the circumstances under which “the gathering of intelligence” took place — the coercive interrogations, and in some cases the torture, of the prisoners themselves, or of their fellow prisoners.
With 57 rulings now delivered in the District Court in Washington D.C. on the prisoners’ habeas corpus petitions (38 of which have been won by the prisoners), these problems have been highlighted again and again by judges, with an objectivity that eluded the Task Force — as, for example, in the cases of Fouad al-Rabiah, a Kuwaiti put forward by President Bush for a trial by military commission, who was freed after a judge ruled that the entire case against him rested on a false narrative that he had come up with after torture and threats, and, to cite just two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan, and Mohammed El-Gharani, a Chadian national, who was just 14 when he was seized in a raid on a mosque in Pakistan. In both cases, they were freed after judges ruled that the government’s witnesses — the men’s fellow prisoners — were irredeemably unreliable, and were, if not subjected to violence, then bribed to produce false statements.
It is, therefore, rather disingenuous of the Task Force to claim that “the principal obstacle to prosecution” for these 48 men “typically did not come from … concerns that the evidence against the detainee[s] was tainted,” when, to be frank, the record is replete with examples proving the opposite.
President Obama: Releasing them at this stage could potentially create greater danger for the American people. And so how do we manage that? And that’s what this team has been looking at. Are there ways for us to make sure these folks have lawyers, to make sure that these folks have the opportunity to challenge their detention — but at the same time, making sure that we are not simply releasing folks who could do us grievous harm and have shown a capacity and willingness to engage in brutal attacks in the past.
My analysis: The men already do have lawyers, for their habeas corpus petitions, mentioned above, but it is a sign of the administration’s disregard for the habeas process (as mentioned in the introduction to this article) that the President overlooked this. In addition, releasing them at this stage could potentially cause danger for the American people, but releasing any prisoner at any time could be dangerous, and this fails to detract from the fact that, if regarded as dangerous, they should be put on trial, or, if the President wants a more radical solution, recategorized as prisoners of war, and given the full protections of the Geneva Conventions, instead of being held according to the deeply problematical Authorization for Use of Military Force. Passed by Congress the week after the 9/11 attacks, the AUMF established the flawed basis for holding prisoners neither as criminal suspects or as prisoners of war, but as what were known, in the Bush administration, as “enemy combatants,” and are now, alarmingly, known as “alien unprivilieged enemy belligerents.”
President Obama: And so when I get that report, I’m sure that I’ll have more comments on it. The bottom line is that striking this balance between our security and making sure that we are consistent with our values and our Constitution is not an easy task, but ultimately that’s what’s required for practical reasons.
Because the more people are reminded of what makes America special, the fact that we stand for something beyond just our economic power or our military might, but we have these core ideals that we observe even when it’s hard — that’s one of our most powerful weapons. And I want to make sure that we don’t lose that weapon in what is a serious struggle.
My conclusion: If you want America to be special, Mr. President, and to demonstrate that you have “core ideals that we observe even when it’s hard,” then refining indefinite detention without charge or trial through an executive order, refusing to release 58 cleared prisoners to Yemen because of a moratorium you issued nearly a year ago, and refusing to stand up to critics who oppose federal court trials for men suspected of terrorist activities is not the way to do it. I know you face harsh opposition, but in the end you’re the commander-in-chief, and when, on taking office, you repudiated President Bush’s dangerous assertions of unfettered executive power, and stated that you would rely, instead, on Congressional approval, it didn’t mean that you had to step back from exerting your power when it was politically inconvenient, or that you would only issue an executive order when it came to endorsing one of the vilest of your predecessor’s many vile innovations — the false and unjustifiable imprisonment without charge or trial of men mischaracterized, nine years ago, as “the worst of the worst,” when, all along, they were, if not competely innocent men, seized by mistake, then terror suspects or soldiers.
Only three viable paths remain open to you, Mr. President: put the prisoners on trial, release them, or recategorize those found by the courts to have been soldiers as prisoners of war.
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