[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 administrations 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, Id 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,
its 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 nations
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, Cheneys 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
administrations 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
administrations quest for unfettered executive
power, based on unitary executive theory.
Embraced by Cheney and Rumsfeld during their
formative years in Richard Nixons 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
administrations 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 Pentagons
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.
Guantánamos 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 Courts 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 Karzais 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 Guantánamos 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. Abrahams 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 CSRTs 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
Freedom Archives
522 Valencia Street
San Francisco, CA 94110
415 863-9977
www.Freedomarchives.org
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