[Ppnews] Congressional Depravity on Gitmo

Political Prisoner News ppnews at freedomarchives.org
Sat Oct 10 00:48:19 EDT 2009

October 9-11, 2009

Lawyer Blasts Congress

Congressional Depravity on Gitmo


In a recent article, 
Guantánamo, Lawmakers Reveal They Are Still Dick 
Cheney’s Pawns,” I spelled out my despair and 
disgust at lawmakers from both parties (their 
names can be found 
who, since May, have voted for legislation 
severely curtailing President Obama’s ability to 
close the prison at Guantánamo Bay, Cuba by his 
deadline of January 22, 2010, and who, as a 
result, have sent just one resounding message to 
the American people and the wider world: the 
ghost of 
Cheney still stalks the corridors of power.

In the article, I ran through these disturbing 
developments, explaining how, in May, the Senate 
voted overwhelmingly in favor of an amendment to 
the Supplemental Appropriations Act of 2009, 
which eliminated $80 million from planned 
legislation intended to fund the closure of 
Guantánamo, and specifically prohibited the use 
of any funding to “transfer, relocate, or 
incarcerate Guantánamo Bay detainees to or within 
the United States,” and how, in June, the House 
of Representatives followed up by passing a 
spending bill turning down the administration’s 
request for $60 million to close Guantánamo, 
which also prohibited funds from being used to 
release detainees from Guantánamo into the United 
States. The spur for my article came just last 
week, when Representatives voted overwhelmingly 
for a nonbinding motion proposed by Rep. Hal 
Rogers (R-Ken.), “clearly prohibiting” the 
transfer of any Guantánamo prisoner to the United 
States “for whatever reason”; in other words, 
even for federal court trials, or 
revision of the horribly flawed Military 
Commission trial system favored by the Bush administration.

I’m pleased to say that I was not alone in my 
despair. On Tuesday, Attorney General Eric Holder 
stated, “The restrictions that we've had to deal 
with on the Hill give me great concern,” adding, 
as the 
Press described it, that he “disputed the claim, 
made often by Republican lawmakers, that 
Guantánamo Bay detainees are simply too dangerous 
to be brought to US soil.” “I don't see how that 
in fact is accurate,” Holder said, adding, “You 
can go through a litany of very, very dangerous 
people who are safely housed in facilities that 
pose no dangers to the communities that surround 
them.” Citing the examples of Ramzi Yousef, the 
mastermind of the 1993 World Trade Center 
bombing, and the “Unabomber” Ted Kaczynski, he 
stated, “I think we have a good track record.”

In combating the fearmongering in Congress that, 
on last week’s showing, threatens to completely 
derail the administration’s ability to close 
Guantánamo at all, Holder was echoing important 
points made by President Obama in 
major national security speech in May, when he stated:

[W]e will be ill-served by some of the 
fear-mongering that emerges whenever we discuss 
this issue. Listening to the recent debate, I’ve 
heard words that are calculated to scare people 
rather than educate them; words that have more to 
do with politics than protecting our country 
[B]ear in mind the following fact: nobody has 
ever escaped from one of our federal “supermax” 
prisons, which hold hundreds of convicted 
terrorists. As Senator Lindsey Graham said: “The 
idea that we cannot find a place to securely 
house 250-plus detainees within the United States is not rational.”

Over the last few days, following intense 
negotiations, it appears that the administration 
has managed to persuade Democratic senators and 
congressmen to accept that prisoners can be 
brought to the US to face trial, although, as 
added, the measure added by the Senate stipulated 
that the administration “would be required to 
present a risk assessment and give 14 days' 
notice before bringing any of the 223 detainees 
remaining in the facility to the United States to 
face charges in American courtrooms.” Moreover, 
although Democrats in the House of 
Representatives also added an amendment to their 
bill -- less generously demanding that the 
president provides a “comprehensive disposition 
plan” at least 45 days before any proposed 
transfer -- these measures still “face a tough 
vote” before the full Senate and the House of 
Representatives (as Reuters explained), 
especially after the widespread capitulation last 
week to Rep. Rogers and his paranoid talk about 
“the American people” and their fears of 
“terrorists in their hometowns, inciting fellow 
prisoners, abusing our legal system, and terrorizing their communities.”

However, although this is progress of a sort, it 
should not be forgotten that the nation’s 
lawmakers persistently failed to call a halt to 
the excesses of the Bush administration, and, in 
fact, played a decisive role in propping up a 
lawless regime by endorsing two pieces of 
dreadful legislation (the Detainee Treatment Act 
of 2005 and the Military Commissions Act of 
2006), which purported to strip the prisoners of 
the habeas corpus rights they were granted by the 
Supreme Court in 2004, revived the Commissions 
after the Supreme Court ruled them illegal, and 
also sought to grant immunity for any wrongdoing 
to the entire Bush administration.

For these lame apologies for legislative 
scrutiny, lawmakers were severely chastised by 
the Supreme Court in June 2008, when the nation’s 
senior judges 
the prisoners’ habeas corpus rights and ruled 
that the habeas-stripping aspects of the DTA and 
MCA had been unconstitutional, but as Lt. Col. 
David Frakt, law professor and former military 
defense attorney for Guantánamo prisoner 
Jawad explained to me in an email this week, 
Congress is still behaving unconstitutionally 
with regard to the right of the Executive branch 
and the Judiciary to order the release of 
prisoners from Guantánamo who have won their habeas corpus petitions.

Drawing on the experience of Mohammed Jawad -- 
just one of the 30 prisoners (out of 38 in total) 
has been ordered by a judge after finding that 
the government had failed to establish, “by a 
preponderance of the evidence,” that they had any 
connection to either al-Qaeda or the Taliban -- 
Lt. Col. Frakt pointed out, with reference to 
article I had written suggesting that 31 cleared 
prisoners in Guantánamo could be released 
immediately, that I had neglected to mention that 
an impediment to their immediate release had been 
established by Congress, which, in summer, 
“passed a law that requires the Administration to 
give Congress 15 days notice before releasing 
anyone from Guantánamo.” Lt. Col. Frakt added, 
“This was why, when Mohammed Jawad was ordered 
released, it still took 22 days to release him. 
The Department of Justice said they needed a week 
to prepare the notice and then he couldn’t be 
released until 15 days after that.”

Crucially, Lt. Col. Frakt explained:

I consider this Congressional notification 
requirement to be blatantly unconstitutional as a 
violation of the separation of powers. In Jawad’s 
case, it meant that after the Executive Branch 
and the Judiciary had concluded there was no 
lawful basis for the military to detain Mohammed 
Jawad (after the Department of Justice ultimately 
conceded the habeas corpus petition), the 
military was required to continue to detain him 
at Guantánamo at the order of the legislature, 
Congress. As I explained in Federal District 
Court, this placed Jawad in the status of 
“Congressional prisoner,” a status for which 
there is no Constitutional authority.

After explaining that Jawad’s defense team “chose 
not to challenge this ridiculous provision, 
because a challenge would have likely taken 
months to work its way through the courts,” Lt. Col. Frakt concluded:

It may be that, if the US is contemplating 
releasing a detainee that it has the lawful basis 
to detain under the laws of war, that Congress 
can legitimately condition the expenditure of US 
funds to effectuate the release on the provision 
of this notification to Congress, but for those 
detainees determined to be unlawfully held, this 
law simply arbitrarily extends their unlawful 
stay at Guantánamo. This provision, coupled with 
the refusal to authorize funds for detainees to 
be resettled in the United States -- even those 
determined to be innocent of any wrongdoing who 
qualify for political asylum -- shows the extent 
of Congressional depravity on any issues related to detainees.

These are tough words, but no less than lawmakers 
deserve, and as the battle over Guantánamo’s 
future continues throughout the fall, I hope that 
officials in the Obama administration will be 
able to make good use of them. As Lt. Col. Frakt 
so ably points out, it is completely unacceptable 
that, on Guantánamo, both the Executive and the 
Judiciary are now at the mercy of Congress, where 
lawmakers are not only continuing to endorse Dick 
Cheney’s evidence-free rationale for arbitrary 
detention, but have also seized arbitrary detention powers for themselves.

Andy Worthington is a British journalist and 
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: 
<http://www.counterpunch.org/mailto:andy@andyworthington.co.uk>andy at andyworthington.co.uk 

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