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<a href="http://www.counterpunch.org/worthington11202008.html" eudora="autourl">
http://www.counterpunch.org/worthington11202008.html<br><br>
</a></font><font face="Verdana" size=2 color="#990000">November 20,
2008<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>More Advice for
Obama <br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">How
Guanántamo Can be Closed
</b></font></h1><font face="Times New Roman, Times" size=4>By ANDY
WORTHINGTON <br><br>
</font><font face="Verdana" size=6 color="#990000">O</font>
<font face="Verdana" size=2>f the 255 prisoners currently held at
Guantánamo, around 50 have been “approved for transfer” -- many for at
least three years -- but they remain in Guantánamo, mostly imprisoned in
conditions that would task the resilience of the most hardened convicted
criminals on the US mainland, for two particular reasons. The first is
because they are from countries with notoriously poor human rights
records (including China, Libya, Syria, Tunisia and Uzbekistan) or
unstable regimes like Iraq, and cannot be returned because of
international treaties preventing the return of foreign nationals to
countries where they face the risk of torture. The second reason is that
the administration’s insistence that they are still “enemy combatants”
(or are “no longer enemy combatants”) has deterred other countries from
accepting them. Even though State Department representatives have been
touring the world for the last three years in an attempt to relocate some
of these men, the only third country that has been prevailed upon to
accept any of them is Albania, which took eight former prisoners in
2006.<br><br>
I am reliably informed that there are certain career officials in the
State Department who have been anxiously awaiting a new administration,
in the expectation that it will facilitate greater cooperation between
the United States and its allies in Europe, and that some of these
countries might now agree to help the United States out of the hole dug
by the Bush administration, which regularly made matters worse by
criticizing other countries for not helping out. In August 2007, for
example, President Bush stated, “I did say it should be a goal of the
nation to shut down Guantánamo,” but added, “I also made it clear that
part of the delay was the reluctance of some nations to take back some of
the people being held there.”<br><br>
To this end, several prominent human rights and legal organizations --
including Amnesty International, Human Rights Watch and the Center for
Constitutional Rights -- launched a campaign in Berlin on November 10
aimed at persuading European countries to accept cleared prisoners from
Guantánamo. This is laudable, as it is clearly intolerable that these men
remain imprisoned at Guantánamo (and, as it stands, makes Barack Obama’s
pledge to close the prison impossible), but if the President-Elect really
wants to do the right thing, then he should make the first move by
allowing the 17 remaining Uighurs at Guantánamo (Muslims from China’s
Xinjiang province, who had fled to Afghanistan to escape Chinese
persecution) to settle in the United States. <br><br>
The Uighurs scored a major victory this summer, after the Supreme Court
ruled that the Guantánamo prisoners had constitutional habeas corpus
rights. This ruling unlocked hundreds of habeas cases that had stalled in
the lower courts following the passage of the Detainee Treatment Act of
2005 and the Military Commissions Act of 2006, which purported to strip
the prisoners of the habeas rights granted by the Supreme Court in 2004.
When the first of these cases, that of a Uighur prisoner called Huzaifa
Parhat, was finally reviewed by the Court of Appeals in Washington D.C.,
the judges ruled that Parhat’s designation as an “enemy combatant” was
invalid, and derided the government’s “evidence” as being akin to a
nonsense poem by Lewis Carroll, the author of <i>Alice’s Adventures in
Wonderland</i>.<br><br>
In the months that followed, the cases against all 17 Uighurs crumbled,
as the government admitted that it would “serve no purpose” to continue
trying to prove that Parhat was an “enemy combatant,” and then did the
same for his 16 compatriots. In October, when Judge Ricardo Urbina of the
US District Court in Washington D.C. held a hearing to determine what
should happen to the Uighurs, he declared, “Because the Constitution
prohibits indefinite detentions without cause, the continued detention is
unlawful.” Furthermore, because no third country had been found that
would accept the men, he ordered their release to the care of communities
in the Washington D.C. area, and Tallahassee, Florida, who had put
together detailed plans for their resettlement in the United
States.<br><br>
This was a proud moment for American justice, but the Uighurs never made
it to Washington D.C. or Tallahassee. Instead, the government appealed,
the Justice Department wheeled out its old and discredited allegations
about the men being connected to terrorism (thereby stymieing attempts to
find a third country to take them), and, in a brief filed for hearings
next week, asserted that the executive branch “has authority to hold
aliens in detention even if they are not considered enemies of the US,”
adding, for good measure, “even if the detention is indefinite, it is
still lawful.”<br><br>
This is clearly an intolerable situation. As the only prisoners at
Guantánamo who have ever persuaded the Bush administration to drop its
claims that they are “enemy combatants,” the Uighurs deserve the lifeline
extended to them by Judge Urbina. If the appeal goes against them, the
new administration should make their release into the United States a
priority. <br><br>
</font><h2><font face="Verdana" size=2 color="#990000"><b>The 80
prisoners scheduled to face trial by Military
Commission</b></font></h2><font face="Verdana" size=2>President-Elect
Obama has already pledged to repeal the Military Commissions Act, which
revived the Bush administration’s deeply flawed “terror trials” after the
Supreme Court ruled them illegal in June 2006. This should be a priority
after January 20, 2009, and should be accompanied by a thorough and
independent review of the cases against the 80 or so prisoners facing (or
scheduled to face) a trial by Military Commission. <br><br>
What’s important to note is that the administration’s figure can be
whittled down without any difficulty. Of the 17 prisoners currently
facing trial by Military Commission, for example, two -- Omar Khadr and
Mohamed Jawad -- were juveniles when they were seized, and should have
been rehabilitated rather then punished under the terms of the Optional
Protocol to the UN Convention on the Rights of the Child (on the
involvement of children in armed conflict). Moreover, significant doubts
have been expressed about the quality of the evidence against them, with
legitimate claims made by their military defense attorneys (and, in
Jawad’s case, by his former prosecutor, who resigned in September) that
evidence vital to the defense was deliberately suppressed. In addition,
another three of the 17 are minor Afghan insurgents, at best, who are not
accused of killing US forces, and have no connection with al-Qaeda. All
these prisoners should be released.<br><br>
Others who have expressed doubts about the Pentagon’s figures are senior
officials who spoke to the <i>New York Times</i> in 2004, when a total of
749 prisoners had been held at Guantánamo. In interviews, the
<i>Times</i> explained, “dozens of high-level military, intelligence and
law-enforcement officials in the United States, Europe and the Middle
East said that contrary to the repeated assertions of senior
administration officials, none of the detainees at the United States
Naval Base at Guantánamo Bay ranked as leaders or senior operatives of
al-Qaeda. They said only a relative handful -- some put the number at
about a dozen, others more than two dozen -- were sworn Qaeda members or
other militants able to elucidate the organization's inner
workings.”<br><br>
To these can be added some, or perhaps the majority of the ten prisoners
transferred to Guantánamo from secret CIA prisons in September 2004, the
14 “high-value detainees” -- including Khalid Sheikh Mohammed and the
other alleged 9/11 conspirators -- who were transferred in September
2006, and two of the six prisoners who arrived at Guantánamo between
March 2007 and March 2008. These prisoners -- somewhere between 35 and 50
in total -- are the only ones who should be moved to the US mainland to
face trials in federal courtrooms. <br><br>
There will inevitably be problems -- protecting confidential intelligence
sources, for example, and, in particular, dealing with evidence obtained
through torture -- but I can see no other alternative. The trials as they
stand are an abomination, permeated with systemic pro-prosecution bias,
and capable of handing down a life sentence only in a one-sided show
trial (that of Ali Hamza al-Bahlul), which passed largely unnoticed in
the week before the Presidential election. <br><br>
Holding prisoners forever without charge or trial is clearly an untenable
solution, as it simply perpetuates the Bush administration’s crimes, and
recent suggestions -- by both Democrats and Republicans -- that another
new trial system should be instigated, or that a form of “preventive
detention” should be introduced, are just as redolent of the arrogance of
the Bush years, and indicate that those proposing them have learned
nothing from the abuse of the Constitution over the last seven
years.<br><br>
In addition, one extra problem that President Obama may have to deal with
as soon as he takes office concerns Salim Hamdan, the driver for Osama
bin Laden who was convicted of material support for terrorism (but
cleared of conspiracy) in a trial that took place over the summer. Hamdan
was sentenced to five-and-a-half years’ imprisonment, but his judge, Navy
Capt. Keith Allred, allowed for time served since he was first charged,
which means that he will have finished serving his sentence by the end of
the year. Allred has refused to bow to pressure from the Defense
Department, which attempted to claim that he had no right to allow time
served to be taken into account, but the Pentagon may yet assert that it
has the right to continue holding Hamdan as an “enemy combatant,” even
after his sentence is over.<br><br>
Like the plight of the Uighurs, this is completely unjustifiable, as
Hamdan was convicted by a military jury in a trial of the
administration’s own devising, but if the outgoing President insists on
holding Hamdan after his sentence is served, President Obama will have to
ensure that he is allowed to return to his family in Yemen.<br><br>
</font><h2><font face="Verdana" size=2 color="#990000"><b>The 125
prisoners who are “too dangerous” to be
released</b></font></h2><font face="Verdana" size=2>The notion that
prisoners can be “too dangerous to release but not guilty enough to
prosecute” is another hallmark of the Bush administration’s disdain for
the law, but this, too, has been embraced by enthusiasts for a new policy
of “preventive detention.” The rationale is, however, also unjustifiable.
As I hope to have demonstrated in my previous article, in which I
dissected the failures of the interrogators at Guantánamo to distinguish
between genuine intelligence and false confessions produced through the
use of torture, coercion or bribery, there is no reason to elevate these
prisoners to even the lowest rungs of a terrorist hierarchy, and every
reason to follow the conclusions reached by senior military and
intelligence officials: that no more than 35 to 50 of the prisoners had
any meaningful connection with al-Qaeda.<br><br>
There is, at present, some hope that these prisoners’ habeas reviews will
demonstrate the weakness of the government’s evidence against these 125
prisoners. In the case of six Bosnians accused of plotting to blow up the
US embassy in Sarajevo, for example, their habeas review began with the
government dropping the claim (which, it should be noted, was dismissed
by the Bosnian government in January 2002, before the men were kidnapped
and sent to Guantánamo), and it seems probable that other cases will also
see the government dropping its “evidence,” before the judges can
conclude, as the appeal court judges did in the case of Huzaifa Parhat,
that it is no more reliable than the nonsense poetry of Lewis
Carroll.<br><br>
I can only hope that the habeas reviews continue to force the government
to drop more of its redundant claims against the prisoners, as my
research has illuminated, above all, how the protestations of innocent
men -- and of Taliban foot soldiers recruited to fight an inter-Muslim
civil war that began long before 9/11 and had nothing to do with al-Qaeda
-- have been overshadowed with disturbing regularity by allegations made
by unnamed “senior figures in al-Qaeda,” interrogated in unknown
circumstances, or by other prisoners who have made false confessions,
often on a colossal scale, in the hope of securing more favorable
treatment. Stark examples of both of these practices are available, but
many more are reported in <i>The Guantánamo Files</i>, and what they
demonstrate, above all, is how the entire “War on Terror” detention
program, as executed at Guantánamo, was designed to do away with the
presumption of innocence, and was, instead, focused solely on confirming
preordained guilt.<br><br>
The 125 prisoners in question are from a variety of nations -- a few
dozen of the remaining Afghans, several dozen more from the countries of
North Africa and the Gulf -- but up to half are from the largest
remaining group at Guantánamo: the Yemenis. Unlike the 130 Saudis, who
were mostly released from Guantánamo in 2006 and 2007, after the Saudi
government instigated a rehabilitation program (involving religious
retraining and support in finding wives and employment), which met with
the approval of the US authorities, only 13 of the 108 Yemenis in
Guantánamo have been released, even though they, like the Saudis, were,
for the most part, a mixture of Taliban foot soldiers and humanitarian
aid workers and missionaries, caught up in an undiscriminating dragnet.
<br><br>
The problem, as has been repeatedly stated, is that the US authorities
claim that they are not convinced that the Yemeni government will be able
to guarantee that the men will not continue to pose a threat to the
United States. For their part, as the <i>Houston Chronicle</i> reported
on Saturday, “Yemeni officials say they're ready to try many of the men
and imprison those who are convicted, but they complain that US officials
refuse to share evidence with them.” The Yemeni foreign minister, Abu
Bakr al-Kirbi, explained, “Based on the information we have, some of the
Guantánamo prisoners have nothing to do with terrorism. We cannot
imprison them without a court sentence. We cannot do something that is
against our laws. We are accountable to our own public.” <br><br>
Al-Kirbi is undoubtedly right that some of the men pose no threat to
anybody, and cannot be detained without reason, but to break the deadlock
both sides need to sit down and hammer out a deal -- perhaps one that
involves judge Hamoud Al-Hitar, the head of Yemen’s Dialogue Committee,
which, as the <i>Yemen Times</i> reported last December, “aims at
steering extremists away from violence through a number of dialogue
sessions.” Al-Hitar’s program is widely credited as the inspiration for
the Saudis’ successful rehabilitation program, and it would surely,
therefore, make sense for the US and Yemeni governments to work out how
to come up with a suitable program for Yemen that will enable Barack
Obama to close Guantánamo. <br><br>
Then we can move on to what lies behind Guantánamo: the unaccountable
prisons in Afghanistan and Iraq, which hold an estimated 39,000
prisoners, and the unknown number of prisoners still held in secret CIA
custody, or rendered to torture in third countries, who constitute
“America’s Disappeared.”<br><br>
<b>Andy Worthington</b> is a British historian, and the author of
'<a href="http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga">
The Guantánamo Files: The Stories of the 774 Detainees in America's
Illegal Prison'</a> (published by Pluto Press). Visit his website at:
<a href="http://www.andyworthington.co.uk/">www.andyworthington.co.uk</a>
<br><br>
He can be reached at:
<a href="mailto:andy@andyworthington.co.uk">andy@andyworthington.co.uk</a>
<br><br>
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