[Ppnews] Closing Guantánamo

Political Prisoner News ppnews at freedomarchives.org
Mon Nov 17 11:35:00 EST 2008


http://www.counterpunch.org/worthington11172008.html

November 17, 2008


Advice for Barack Obama


Closing Guantánamo

By ANDY WORTHINGTON

On Sunday, in his first television interview 
since winning the Presidential election, Barack 
Obama repeated his campaign pledge to close the 
prison at Guantánamo Bay and to ban the use of 
torture by U.S. forces. Speaking on 
<http://www.cbsnews.com/sections/60minutes/main3415.shtml>60 
Minutes, he explained, “I have said repeatedly 
that I intend to close Guantánamo, and I will 
follow through on that. I have said repeatedly 
that America doesn't torture. And I'm going to 
make sure that we don't torture. Those are part 
and parcel of an effort to regain America's moral stature in the world.”

Ever since Obama began meeting with his 
transition team, leaks, gossip and rumors 
concerning the new administration’s plans to 
close Guantánamo, and the hurdles they will have 
to surmount, have been filling the airwaves and 
the front pages of newspapers. In an attempt to 
separate fact from fiction and to provide useful 
information to the President-Elect, I’d like to 
offer my advice, based on the three years I have 
spent studying Guantánamo in unprecedented 
detail, as the author of 
<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files, the first book to tell the 
stories of all the prisoners, and as a 
commentator and analyst responsible for numerous 
articles on Guantánamo in the last 18 months.

As the President-Elect and his transition team 
are no doubt aware, there are three categories of 
prisoners at Guantánamo: around 50 prisoners 
cleared for release or approved for transfer 
after multiple military reviews; up to 80 
prisoners regarded as eligible for trial by 
Military Commission (the system of “terror 
trials” conceived in the Office of the Vice 
President in November 2001); and another 125 
prisoners who have 
<http://www.cbsnews.com/stories/2008/11/14/eveningnews/main4606261.shtml>long 
been regarded as “too dangerous to release but 
not guilty enough to prosecute.”

However, before looking in detail at what should 
be done with each of these groups of prisoners, 
it’s important to understand how the 
administration came to hold prisoners without 
charge or trial for nearly seven years, and how 
it came to put some of them forward for trial in 
a novel and untested system for “terror 
suspects,” and to examine the dangerously flawed 
manner in which the prisoners were seized, held, 
interrogated and appraised as a threat to the United States.

9/11: an excuse for unfettered executive power

In the wake of the 9/11 attacks, the nation’s 
response was mainly driven forward by Vice 
President 
<http://www.andyworthington.co.uk/2007/06/26/dick-cheney-more-horrors-from-the-vice-president-for-torture/>Dick 
Cheney, former defense secretary Donald Rumsfeld, 
and their close advisors (including, in 
particular, Cheney’s legal counsel, 
<http://www.newyorker.com/archive/2006/07/03/060703fa_fact1>David 
Addington). According to the “new paradigm” 
dreamt up by these men, prisoners seized in the 
“War on Terror” were regarded neither as 
criminals nor as Enemy Prisoners of War protected 
by the Geneva Conventions, but as “illegal enemy 
combatants,” who could be held indefinitely 
without charge or trial. The primary 
justification for this was a military order 
drafted by Cheney and Addington in November 2001, 
which also created the Military Commissions. 
Approved with virtually no oversight whatsoever, 
the military order was followed by a number of 
secret legal opinions, which attempted to 
redefine torture, and approved the use of 
“enhanced interrogation techniques” (the 
administration’s chosen euphemism for torture) by 
both the CIA and the military in general.

This was repugnant enough, but what was even more 
disturbing was the theory that underpinned these 
innovations. The military order and the secret 
memos -- and the “signing statements” that the 
President attached to a record number of laws 
passed by Congress, as recommended by Addington 
-- served as a baleful example of the 
administration’s quest for unfettered executive 
power, based on “unitary executive theory.”

Embraced by Cheney and Rumsfeld during their 
formative years in Richard Nixon’s White House, 
and also by Addington, who teamed up with Cheney 
to protect Ronald Reagan during the Iran-Contra 
scandal, the theory contends that, when he 
wishes, the President is entitled to act 
unilaterally, without interference from Congress 
or the judiciary. It is, of course, in direct 
contravention of the separation of powers on 
which the United States was founded, and critics 
have long insisted that it is nothing less than 
an attempt by the executive to seize the 
dictatorial powers that the Constitution was designed to prevent.

The “War on Terror” provided the supporters of 
“unitary executive theory” with an unprecedented 
opportunity to act without any oversight 
whatsoever, but what made it even more shocking 
in its execution was that it effectively allowed 
no questions to be asked about whether or not the 
administration’s policies were misguided, overzealous, or just plain wrong.


Buying prisoners for bounties and shredding the Geneva Conventions

Sticking to a mantra that whatever the President 
chose to do was a justifiable expression of his 
role as the Commander-in-Chief during wartime, 
the administration was unconcerned that, when it 
began collecting prisoners during the invasion of 
Afghanistan, many of those held as “enemy 
combatants” were seized not by U.S. forces, but 
by their Afghan and Pakistani allies, who were 
encouraged by bounty payments, averaging $5000 a 
head, that were offered for “al-Qaeda and Taliban suspects.”

In his 2006 autobiography, 
<http://www.amazon.com/Line-Fire-Memoir-Pervez-Musharraf/dp/0743283449>In 
the Line of Fire, President Musharraf of Pakistan 
bragged that, in return for handing over 369 
terror suspects (who were mostly transferred to 
Guantánamo), “We have earned bounty payments 
totaling millions of dollars.” When researchers 
at the Seton Hall Law School analyzed 517 
Unclassified Summaries of Evidence for the 
prisoners (documents laying out the Pentagon’s 
case for holding them as “enemy combatants”), 
they discovered 
(<http://law.shu.edu/aaafinal.pdf>PDF) that 86 
percent were seized not by U.S. forces but by 
their allies, which indicated that the 
probability of innocent men (or Taliban foot 
soldiers with no knowledge of al-Qaeda) being 
passed off as serious “terror suspects” was enormous.

Just as disturbing is the realization that, once 
they were in U.S. custody in the prisons at 
Kandahar airport and Bagram airbase, the majority 
of the prisoners who ended up in Guantánamo were 
never even screened to determine whether they 
should have been held in the first place. A 
senior interrogator at Kandahar and Bagram, who 
wrote a book about his experiences 
(<http://www.amazon.com/Interrogators-Inside-Secret-Against-Qaeda/dp/0316871125>The 
Interrogators) under the pseudonym Chris Mackey, 
stated explicitly that, under orders handed down 
from senior figures in the U.S. military and the 
intelligence agencies, who were sent the prisoner 
lists from Afghanistan, all “non-Afghan 
Taliban/foreign fighters” were to be sent to 
Guantánamo. As Mackey noted, “Strictly speaking, 
that meant every Arab we encountered was in for a 
long-term stay and an eventual trip to Cuba.”

The same was true of the majority of the 220 or 
so Afghans who were also transferred to 
Guantánamo. Although Mackey made it clear that 
only Afghans with “considerable intelligence 
value” were supposed to be sent to Guantánamo, it 
was not until June 2002, when around 600 
prisoners in total had already been transferred, 
that those in charge on the ground in Afghanistan 
came up with a category of temporary prisoner, 
who could be held for 14 days without being 
assigned a number that entered the system 
overseen by the Pentagon and the intelligence 
agencies. It was, he explained, the only way that 
they could deal with at least some of the many 
innocent Afghans who ended up in their custody. 
Even this, however, failed to stem the flow of 
wrongly detained Afghans who continued to be sent 
to Guantánamo until the industrial-scale 
rendition of prisoners ended in August 2003.

This whole process was in marked contrast to the 
Article 5 battlefield tribunals, enshrined in the 
Geneva Conventions, which had taken place in all 
other U.S. wars since the Second World War. Held 
close to the time and place of capture, these 
enabled the military to separate soldiers from 
civilians caught up in the chaos of war by 
allowing prisoners to present their case to a 
military review board, and to call witnesses. 
During the first Gulf War, for example, the 
military held 1,196 battlefield tribunals, and in 
nearly three-quarters of them the prisoners were 
found to be innocent and were subsequently released.


Guantánamo’s deliberately flawed tribunals

When tribunals were finally allowed, they 
occurred up to three years after the prisoners 
were seized, and took place at Guantánamo, half a 
world away from the place of capture. They were, 
moreover, introduced solely as a rebuke to the 
Supreme Court. In June 2004, alarmed that 
prisoners seized in wartime were being held 
without any possibility of review (even if they 
maintained, as many did, that they were innocent 
men seized by mistake), the Supreme Court 
delivered an unprecedented ruling, granting the 
prisoners habeas corpus rights -- the right to 
challenge the basis of their detention before an 
impartial judge, based on an 800-year old English 
law that was one of the foundation stones of U.S. law.

As a mockery of the battlefield tribunals (and of 
the Supreme Court’s intentions), the Combatant 
Status Review Tribunals (CSRTs) at Guantánamo 
prevented the prisoners from having access to 
lawyers, gave them no opportunity to present 
evidence in their defense, and prevented them 
from either seeing or hearing the classified evidence against them.

In addition, although they were empowered to call 
witnesses from outside Guantánamo, the 
authorities responded to every single request by 
claiming that they had been unable to contact 
them, even when, as Carlotta Gall and I reported 
for the 
<http://www.nytimes.com/2008/02/05/world/asia/05gitmo.html?_r=1&oref=slogin>New 
York Times in February, the witness requested by 
one particular prisoner (Abdul Razzaq Hekmati, an 
Afghan who died in Guantánamo of cancer on 
December 26, 2007) was Ismail Khan, a minister in Hamid Karzai’s government.

Moreover, doubts about the quality of the 
information that was presented as evidence by the 
government were spectacularly confirmed in June 
2007, when Lt. Col. Stephen Abraham, a veteran of 
U.S. intelligence who had worked on the 
tribunals, denounced them for being nothing more 
than a front to confirm the prisoners’ prior 
designation as “enemy combatants.” In detailed 
analyses of the tribunals’ failings (available 
<http://www.counterpunch.org/worthington07022007.html>here 
and 
<http://www.counterpunch.org/worthington11202007.html>here), 
Abraham explained, unambiguously, how the body 
set up to administer the tribunals, OARDEC (the 
Office for the Administrative Review of the 
Detention of Enemy Combatants), was staffed for 
the most part by people with no expertise of 
analyzing intelligence, was not empowered to seek 
evidence from the intelligence agencies, and was 
obliged, for the most part, to rely on 
information “of a generalized nature -- often 
outdated, often ‘generic,’ rarely specifically 
relating to the individual subjects of the CSRTs 
or to the circumstances related to those 
individuals’ status,” and on other information 
drawn from the interrogations of the prisoners 
themselves, in which their “confessions” about 
their own activities and those of other prisoners 
may have been -- and frequently were -- obtained 
through torture, coercion or bribery.

A hallmark of the Bush administration has been 
its refusal to concede that it has ever made any 
mistakes in the “War on Terror,” and this was 
also made clear during the CSRTs. Because of what 
one tribunal member called the “low evidentiary 
hurdle” for deciding that prisoners were “enemy 
combatants,” only 38 of the 558 prisoners held at 
the time were cleared for release, even though it 
has subsequently become apparent that many more 
innocent men were actually held. What makes this 
situation even more disturbing, however, is the 
knowledge that the administration insisted on 
reconvening tribunals on several occasions when 
it was not satisfied with the initial result.

This happened to Lt. Col. Abraham after he was 
asked to take part in a tribunal, when he and his 
fellow officers 
<http://www.andyworthington.co.uk/2007/07/26/the-guantanamo-whistleblower-a-libyan-shopkeeper-some-chinese-muslims-and-a-desperate-government/>refused 
to conclude that Abdul Hamid al-Ghizzawi, a 
Libyan shopkeeper with an Afghan wife and a small 
child, was an “enemy combatant.” Abraham and his 
colleagues were dismissed, and a second, secret 
tribunal duly reversed their opinion. It also 
happened on other occasions, including the cases 
of two of Guantánamo’s 22 
<http://www.counterpunch.org/worthington10092008.html>Uighurs 
(Muslims from the Xinjiang province of China, who 
had fled to Afghanistan to escape persecution by the Chinese government).


Forever tainted as “enemy combatants”

Moreover, as one of Lt. Col. Abraham’s colleagues 
<http://www.counterpunch.org/worthington08082007.html>noted 
last summer, the refusal to concede that any of 
the prisoners were innocent meant that, “after 
several detainees were found to be ‘not an enemy 
combatant,’ DoD took away that option and we had 
to start using the term ‘no longer an enemy 
combatant’ for those held for no apparent reason.”

By the time of the CSRT’s successors, the annual 
Administrative Review Boards (ARBs), whose stated 
aim was to determine whether the prisoners still 
constituted a threat to the United States, the 
authorities rapidly dispensed with the claim that 
prisoners were “no longer enemy combatants.” Of 
the 207 prisoners approved to leave Guantánamo 
after the first three rounds of the ARBs, only 14 
were regarded as “no longer enemy combatants,” 
and the rest were still explicitly regarded as 
“enemy combatants,” who were only approved for 
transfer from Guantánamo -- to the custody of 
their home country, or to a third country.

In a second article, I will demonstrate the 
effects of this cynical semantic maneuvering on 
the 50 prisoners still held at Guantánamo who 
have been cleared for release or “approved for 
transfer,” but cannot be repatriated because of 
international treaties preventing the return of 
foreign nationals to countries where they face 
the risk of torture. I will suggest how Barack 
Obama can break this deadlock, and will also 
examine the gulf between rhetoric and reality 
concerning the Military Commissions, proposals to 
transfer prisoners to the U.S. mainland, and what 
the new President should do with the prisoners 
considered “too dangerous to be released, but not guilty enough to prosecute.”

Andy Worthington is a British historian, and the 
author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
<http://www.andyworthington.co.uk/>www.andyworthington.co.uk

He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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