[Ppnews] A Start on Guantánamo, But Not Enough

Political Prisoner News ppnews at freedomarchives.org
Mon May 4 11:53:21 EDT 2009


May 4, 2009

A Start on Guantánamo, But Not Enough

Obama's First Hundred Days


Speaking at 
press conference to mark his first 100 days in 
office, Barack Obama made two bold claims about 
the policies he has already implemented to tackle 
the Executive overreach of the Bush 
administration, with regard to detention and 
interrogation policies in the “War on Terror.”

“We have rejected the false choice between our 
security and our ideals by closing the detention 
center at Guantánamo Bay and banning torture 
without exception,” the President said.

Unfortunately, neither claim is strictly true, as 
I aim to demonstrate in two articles, with 
particular reference to the 
Executive Orders that Barack Obama issued as one 
of his first acts as President.

In the first order, which is the focus of this 
article, Obama stipulated that Guantánamo would 
close within a year, and also established an 
inter-departmental review of the cases of the 
remaining prisoners, a requirement to assess 
whether the prison conformed to the standards 
required by the Geneva Conventions, and a request 
for the reviled system of trials by Military 
Commission at Guantánamo (the “dark side” of the 
law, as envisaged by 
Cheney and David Addington) to be halted for four 
months. The second and third orders will be dealt 
with in the following article, looking at Obama’s 
progress on “banning torture without exception.”

A misleading statement, and too few released prisoners

While Obama is to be credited for issuing these 
orders, his decision to state, “We have rejected 
the false choice between our security and our 
ideals by closing the detention center at 
Guantánamo Bay,” rather than, “We have rejected 
the false choice between our security and our 
ideals by ordering the closure of Guantánamo by 
January 20, 2010,” is rather too economical with the truth for my liking.

Moreover, while the review established by Obama, 
which is being “conducted with the full 
cooperation and participation” of the Attorney 
General, the Secretaries of Defense, State and 
Homeland Security, the Director of National 
Intelligence and the Chairman of the Joint Chiefs 
of Staff, got off to a flying start, it has, to 
date, accomplished very little. Just one 
Mohamed, has been released, and this, it must be 
noted, only came about because the story of his 
“extraordinary rendition” and torture, which was 
the subject of court cases on both sides of the 
Atlantic, meant that he was fast-tracked to the 
top of the list to avoid embarrassment to either 
government. And beyond Mohamed, only one other 
prisoner -- the Yemeni doctor, 
Batarfi -- has been cleared for release.

The ongoing problems of clearing prisoners and rehousing them

At this rate, of course, it will take decades to 
close Guantánamo, but last Wednesday, on a visit 
to Europe, Attorney General 
Holder stated that, as a result of the 
administration’s ongoing review, around 30 
prisoners would soon be ready for release. He 
added that the Justice Department would be 
approaching allies about taking specific 
prisoners “within weeks as opposed to months”, 
but did not explain whether the 30 prisoners he 
was referring to were new cases examined as part 
of the review, or whether they included some, or 
all of the 60 or so prisoners who have already been cleared for release.

40 of these men were approved for release after 
their cases were reviewed by multiple military 
review boards at Guantánamo, and the rest were 
to be freed by courts on the US mainland within 
the last six months, when, after long delays, the 
lower courts were finally empowered to review the 
prisoners’ claims for habeas corpus, following 
last June’s Supreme Court ruling in 
<http://www.counterpunch.org/worthington06132008.html>Boumediene v. Bush.

The distinction is important, as it would be 
distressing to discover that the Obama 
administration felt the need to revisit decisions 
already made by the US military, but it would not 
be entirely surprising if this were the case, 
because the administration has already caused 
spikes of discontent in the courts, where certain 
judges appear to be coming to the conclusion that 
the administration seems to regard its own review 
process as more significant than the habeas reviews.

Mutiny in the courts

Just three weeks ago, 
reported that two habeas judges had made a rare 
public row of their impatience with government 
prosecutors. Judge Colleen Kollar-Kotelly, 
appalled by a government lawyer who “repeatedly 
missed deadlines” in the cases of four Kuwaiti 
prisoners, wrote that his “compliance was not 
optional,” and added that the court had “serious 
concern about counsel's ability to read and 
comprehend its orders,” and Judge Emmet Sullivan 
was equally outraged by government lawyers’ 
“repeated” delays in providing unclassified 
exculpatory material to the defense in the case 
of a Yemeni prisoner. Judge Sullivan said, “To 
hide -- and I don't use that word loosely -- to 
hide relevant and exculpatory evidence from 
counsel and from the court under any circumstance 
... is fundamentally unjust, outrageous and will 
not be tolerated.” Threatening to sanction the 
government, he added, “How can this court have 
any confidence whatsoever in the US government to 
comply with its obligation and to be truthful to the court?”

Speaking to AFP, David Cynamon, a lawyer for the 
Kuwaitis, stated his belief that the government 
was “trying to delay these cases until the review 
team can make decisions without pressure,” and 
another lawyer said, “The Obama administration 
would probably prefer that some cases stop for a 
while.” These were worrying comments, although 
there seems little reason to doubt them, but an 
additional assertion by the second lawyer, that 
“the habeas lawyers have represented these men 
for four or five years and are not content to 
wait any longer,” was particularly relevant, 
because, after the long struggles it took to 
secure legal rights for the prisoners in 
Boumediene, and to rein in the Executive over the 
course of seven years, it was unsurprising that 
both judges and lawyers would be perturbed to 
find themselves apparently overridden by the Executive again.

Focus on the Uighurs

These are not the only troubles. When it comes to 
the prisoners who have already been cleared for 
release, it has long been known that the majority 
of these men face enormous problems, because they 
are from countries including 
and Uzbekistan, and there are fears that they 
will face torture if they are repatriated (as 
prohibited in the 
Convention Against Torture). However, as I 
in March, six Saudis have been cleared since 
before Obama came to power, and yet they still 
languish at Guantánamo, despite a 
long-established rehabilitation program in Saudi 
Arabia that has seen the successful return and 
reeducation of the majority of Guantánamo’s Saudi prisoners.

In addition, the administration has dragged its 
heels over 
Uighurs, Muslims from China’s Xinjiang province, 
who comprise 17 of the 23 prisoners whose release 
was ordered after their habeas reviews, but who 
are still held in Guantánamo. (To date, 
three men have been released since being cleared by the courts).

The release of the Uighurs into the United States 
was ordered last October by District Court Judge 
Ricardo Urbina, in a ruling that was notable for 
his assertion that, because the government had 
accepted that it had no case against them, their 
continued detention was “unconstitutional,” and 
that, because no other country could be found 
that was prepared to enrage China by accepting 
them, they should be accepted onto the US 
mainland. Shamefully, 
Bush administration appealed, and the new 
government did nothing in response when, on 
February 18, a notoriously Conservative appeals 
Urbina’s principled ruling.

This impasse, too, may soon be coming to an end, 
if reports last week are to be believed. 
According to a report in the 
Angeles Times last week, the Obama administration 
was preparing to admit into the United States as 
many as seven of the Uighurs, even though the 
decision “is not final and faces challenges from 
within the government,” in particular from the 
Department of Homeland Security. As the Times 
also explained, however, administration officials 
“believe that settling some of them in American 
communities will set an example, helping to 
persuade other nations to accept Guantánamo 
detainees too.” This is undoubtedly correct, as 
European countries, still shocked by the 
brusqueness with which Bush officials -- and even 
the President himself -- demanded that they help 
out, while refusing to do anything themselves, 
need positive encouragement to help clear up what 
is widely regarded as America’s mess.

To his credit, 
Holder noted this in a speech during his European 
visit, when he stated, “I know that Europe did 
not open Guantánamo and that in fact, a great 
many on this continent opposed it, but as we turn 
the page to a new beginning, it is incumbent on 
us all to embrace new solutions, free from the 
rancor and rhetoric that divided us in the past.” 
However, it still remains the case, as I have 
been explaining since Obama came to power, that 
the Uighurs into the US would be the most 
effective way to break this particular deadlock.

A sleight of hand on detention policies, and further concerns in court

Even if the Uighurs’ resettlement goes ahead, 
this is still not the end of the Obama 
administration’s problems with Guantánamo. In 
March, in a court filing that introduced the 
“current, novel type of armed conflict” as a 
replacement for the Bush administration’s “War on 
Terror,” the government also dropped the use of 
the term “enemy combatant,” but, crucially, 
maintained a similar definition for the now 
nameless prisoners as the one invented by its 
predecessors. Whereas Bush had insisted that he 
could hold people outside the law who were “part 
of, or supporting, Taliban or al-Qaeda forces or 
associated forces that are engaged in hostilities 
against the United States or its coalition 
partners,” the new administration kept this 
definition largely intact, but added that 
individuals who supported al-Qaeda or the Taliban 
were “detainable only if the support was substantial.”

wrote at the time, this supposed change was 
actually worthless, as a close inspection of the 
government’s assertions revealed that it proposed 
to detain someone who never even “attempted to 
commit any act of depredation or entered the 
theatre or zone of active military operations” 
and may only have stayed in a house associated 
with those who did engage in militancy. It was, 
moreover, noticeable that the government's whole 
approach perpetuated the Bush administration’s 
myth that it was justifiable to equate the 
Taliban with al-Qaeda, even though one was a 
government (however reviled) and the other was a small group of terrorists.

In a response filed shortly after the government 
announced its sleight of hand, lawyers for some 
of the Guantánamo prisoners argued, as 
described it, that the new government was “still 
asserting too much authority. The President, they 
contended, is engaging in ‘impermissible 
law-making’ by the Executive branch, intruding on Congress’s powers.”

Last week, the habeas cases took another turn, 
when Judge Reggie B. Walton largely supported the 
government’s position, but warned that he was 
laying down some inviolable “limiting 
principles.” As 
again explained, he “rejected arguments by 
detainees’ lawyers that only an individual who 
was taking part in active hostilities against the 
US at the time of capture could be detained,” 
although he said he had some “distaste for the 
government’s reliance on the term ‘support’ at 
all,” and also made it clear that he was only 
prepared to accept the terms “substantially 
supported” and “part of” if they were 
“interpreted to encompass only individuals who 
were members of the enemy organization’s armed 
forces, as that term is intended under the laws 
of war, at the time of their capture.”

Expanding on his chosen definition, Judge Walton 
also stated, “Only persons who receive and 
execute orders from the enemy’s command 
structure” could be held as members of enemy 
armed forces, adding, “The key question is 
whether an individual receives and executes 
orders from the enemy force’s combat apparatus 
The individual must have some sort of 
’structured’ role in the ‘hierarchy’ of the enemy 
force.” This, he stated, could include those who 
“provided housing, feeding or transporting 
‘al-Qaeda fighters,’ such as a cook who was a 
part of the armed forces but was temporarily 
assigned only a non-combat role,” but he averred 
that it did not include “civilians who may have 
some tangential connections to such 
organizations,” adding that “[s]ympathizers, 
propagandists, and financiers” who had “no 
involvement” with the command structure, even if 
they were “members of the enemy organization in 
an abstract sense,” could not be held unless they 
took “a direct part in hostilities.”

This was sufficiently different from the views of 
other judges -- for example, 
Richard Leon, who “has been using a detention 
definition that gives the government more 
authority than the Obama administration now 
claims” -- for SCOTUSblog to note, “Sooner or 
later, the Supreme Court may have to sort it all out.”

Nearly a year after Boumediene, this wrangling is 
doing nothing to address the Supreme Court’s 
concern that “the costs of delay can no longer be 
borne by those who are held in custody,” but from 
my point of view the main problem is not with the 
courts’ attempts to work out where the lines 
should be drawn, but with the Obama 
administration’s close adherence to its 
predecessor’s rationale, which does not bode well 
for the outcome of Obama’s review, and makes me 
wonder if other disturbing developments are in store.

Certainly, there have been other disappointments. 
In February, the Pentagon’s 
of conditions at Guantánamo concluded that they 
met the standards required by the Geneva 
Conventions, even though, at the time, a hunger 
strike was raging and at least 20 percent of the 
prison’s population was being brutally force-fed, 
and beaten if they resisted; and the initial 
expectation that the Military Commissions would 
not be resuscitated at the end of the four-month 
review period is now looking a shade more dubious at least.

Will the Military Commissions be revived?

Also in February, 
complained that the Pentagon, under defense 
secretary Robert Gates (still, unnervingly, the 
same man employed by George W. Bush), retained 
other Bush officials in worryingly high places 
Crawford, for example, a protégée of Dick Cheney 
and a close friend of David Addington, who 
oversees the Military Commissions), and a week 
after Obama took office the Commissions’ recently 
appointed chief judge, Army Col. James M. Pohl, 
refused to suspend the arraignment of the Saudi 
Rahim al-Nashiri, until it was called off by 
Crawford. In what appeared to be a snub to the 
new President, Col. Pohl stated that “he found 
the prosecutors’ arguments, including the 
assertion that the Obama administration needed 
time to review its options, to ‘be an 
unpersuasive basis to delay the arraignment.’”

After this, the Commissions went quiet, but on 
Wednesday Col. Patrick Parrish, the judge in the 
case of 
Khadr, the Canadian who was just 15 years old 
when he was seized, half-dead, after a firefight 
in Afghanistan in July 2002, 
his lawyers that pre-trial hearings would 
recommence on June 1, unless he was notified to 
the contrary by the government. This means that 
Col. Parrish is either being somewhat 
provocative, or that he expects the 
administration to press ahead with the trials 
after the four-month freeze expires (as the 
York Times suggested in a worrying article on 
Saturday, in which senior officials, speaking 
anonymously, said that “administration lawyers 
have become concerned that they would face 
significant obstacles to trying some terrorism 
suspects in federal courts”), but either way it 
is a troubling development for those who hoped 
that the administration would shut down the 
Commissions without hesitation, would resist all 
calls to reinstate them, amend them or set up 
another novel and untried system, and would, 
instead, move the prisoners regarded as genuinely 
dangerous to the mainland to face trials in federal court.

The dark specter of preventive detention

According to Lawrence Wilkerson, Colin Powell’s 
former Chief of Staff, “no more than a dozen or 
two of the detainees” held in Guantánamo ever had 
any worthwhile intelligence. Wilkerson’s 
statement, included in 
column he wrote in March, was particularly 
significant, as it should indicate that no more 
than two dozen prisoners should face a trial, and 
that the rest -- though many were low-level 
fighters for the Taliban -- should be released.

However, within hours of President Obama’s 100 
Days speech, in a genuinely disturbing 
development that mirrors what Robert Gates’s 
former masters used to say with monotonous 
defense secretary announced to members of the 
Senate Appropriations Committee that the question 
was “still open” as to what the government should 
do with “the 50 to 100 [prisoners] -- probably in 
that ballpark -- who we cannot release and cannot try.”

Back in Bush’s day, these same men were sometimes 
referred to as those who were “too dangerous to 
release but not guilty enough to prosecute” -- 
essentially because the supposed evidence against 
them was extracted through the use of torture or 
coercion. Regardless of how they are described, 
however, the notion that there is now an 
acceptable “third way” between the guilty and not 
guilty verdicts delivered in a courtroom is 
almost incredibly disturbing, not only because, 
yet again, it attempts to exert Executive 
authority over the courts’ ongoing habeas 
reviews, but also because it will undoubtedly 
play into the hands of those lawyers -- including 
Katyal, a law professor who helped overthrow the 
first incarnation of the Military Commissions in 
June 2006 (in the case of 
Hamdan) -- who have recently taken positions in 
the government (Katyal is the principal deputy 
Solicitor General) and are advocating for a 
system of preventive detention to be established.

Just think about it: These are men against whom 
the information that purports to be evidence was 
often gathered by extremely dubious or downright 
illegal means, including the use of torture. It 
cannot therefore be used in a US court, although 
real evidence -- such as the kind based on 
detective work or non-coercive interrogations -- 
can. And yet, because of a suspicion that, if 
they were to be released, these men would at some 
point in the future commit an offence, we are 
told, by those advocating a system of preventive 
detention, that they should be imprisoned forever 
on the basis of secret evidence.

As Kenneth Roth, the Executive Director of Human 
Rights Watch, 
in March, “A regime of preventive detention would 
be perilous for the liberty of US citizens and 
others. It would enable the US government to 
detain individuals for an indeterminate period 
based on predictions about the danger they might 
pose in the future, rather than on provable 
crimes that they had actually committed.”

You can draw whichever dystopian conclusion you 
wish, so long as it’s one of the following:

    * That’s the same as Guantánamo.
    * You can’t imprison people, based on 
evidence that can’t be tested, for what they may or may not do in the future.
    * Who will be next? The poor? Political protestors? You and me?

Andy Worthington is a British historian, and the 
author of 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk

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