<html>
<body>
<font size=3>
<a href="http://www.counterpunch.org/worthington05042009.html" eudora="autourl">
http://www.counterpunch.org/worthington05042009.html<br><br>
</a></font><font face="Verdana" size=2 color="#990000">May 4,
2009<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>A Start on
Guantánamo, But Not Enough <br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">
Obama's First Hundred Days
</b></font></h1><font face="Times New Roman, Times" size=4>By ANDY
WORTHINGTON <br><br>
</font><font face="Verdana" size=6 color="#990000">S</font>
<font face="Verdana" size=2>peaking at
<a href="http://www.huffingtonpost.com/2009/04/29/obama-100-days-press-conf_n_193283.html">
a press conference</a> 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.” <br><br>
“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.<br><br>
Unfortunately, neither claim is strictly true, as I aim to demonstrate in
two articles, with particular reference to the
<a href="http://www.counterpunch.org/worthington01232009.html">three
Executive Orders</a> that Barack Obama issued as one of his first acts as
President. <br><br>
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
<a href="http://www.andyworthington.co.uk/2007/06/26/dick-cheney-more-horrors-from-the-vice-president-for-torture/">
Dick Cheney and David Addington</a>) 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.”
<br><br>
</font><font face="Verdana" size=2 color="#990000"><b>A misleading
statement, and too few released prisoners<br><br>
</b></font><font face="Verdana" size=2>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.<br><br>
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 prisoner,
<a href="http://www.andyworthington.co.uk/2009/03/08/seven-years-of-torture-binyam-mohamed-tells-his-story/">
Binyam Mohamed</a>, 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,
<a href="http://www.andyworthington.co.uk/2009/04/14/the-story-of-ayman-batarfi-a-doctor-in-guantanamo/">
Ayman Batarfi</a> -- has been cleared for release.<br><br>
</font><font face="Verdana" size=2 color="#990000"><b>The ongoing
problems of clearing prisoners and rehousing them <br><br>
</b></font><font face="Verdana" size=2>At this rate, of course, it will
take decades to close Guantánamo, but last Wednesday, on a visit to
Europe, Attorney General
<a href="http://www.reuters.com/article/domesticNews/idUSTRE53S5QK20090429">
Eric Holder stated</a> 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.
<br><br>
<a href="http://www.andyworthington.co.uk/2009/02/10/guantanamos-refugees/">
About 40 of these men</a> were approved for release after their cases
were reviewed by multiple military review boards at Guantánamo, and the
rest were
<a href="http://www.counterpunch.org/worthington01162009.html">ordered to
be freed</a> 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
<a href="http://www.counterpunch.org/worthington06132008.html"><i>
Boumediene v. Bush</a></i>.<br><br>
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.<br><br>
</font><font face="Verdana" size=2 color="#990000"><b>Mutiny in the
courts <br><br>
</b></font><font face="Verdana" size=2>Just three weeks ago,
<a href="http://www.google.com/hostednews/afp/article/ALeqM5iyRIS9wYjs0djQwerdadOXYc5Urg">
AFP reported</a> 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?” <br><br>
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 <i>Boumediene</i>, 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. <br><br>
</font><font face="Verdana" size=2 color="#990000"><b>Focus on the
Uighurs<br><br>
</b></font><font face="Verdana" size=2>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
<a href="http://www.andyworthington.co.uk/2008/11/03/treachery-at-guantanamo/">
Algeria</a>, China,
<a href="http://www.counterpunch.org/worthington06162007.html">Libya</a>,
<a href="http://www.counterpunch.org/worthington10152007.html">Tunisia</a>
and Uzbekistan, and there are fears that they will face torture if they
are repatriated (as prohibited in the
<a href="http://www2.ohchr.org/english/law/cat.htm">UN Convention Against
Torture</a>). However, as I
<a href="http://www.counterpunch.org/worthington03202009.html">reported
in March</a>, 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. <br><br>
In addition, the administration has dragged its heels over
<a href="http://www.counterpunch.org/worthington10092008.html">the
Uighurs</a>, 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,
<a href="http://www.andyworthington.co.uk/2008/12/18/freed-bosnian-calls-guantanamo-the-worst-place-in-the-world/">
just three men</a> have been released since being cleared by the
courts).<br><br>
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,
<a href="http://www.andyworthington.co.uk/2008/10/17/guantanamo-uyghurs-resettlement-prospects-skewered-by-justice-department-lies/">
the Bush administration appealed</a>, and the new government did nothing
in response when, on February 18, a notoriously Conservative appeals
court
<a href="http://www.counterpunch.org/worthington02192009.html">reversed
Urbina’s principled ruling</a>.<br><br>
This impasse, too, may soon be coming to an end, if reports last week are
to be believed. According to a report in the
<a href="http://www.latimes.com/news/nationworld/nation/la-na-gitmo-release24-2009apr24,0,7979465.story">
<i>Los Angeles Times</a></i> 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 <i>Times</i> 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. <br><br>
To his credit,
<a href="http://www.nytimes.com/2009/04/30/world/europe/30iht-gitmo.html?_r=1&ref=europe">
Eric Holder noted</a> 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
<a href="http://www.andyworthington.co.uk/2009/01/05/a-new-year-message-to-barack-obama-free-the-guantanamo-uighurs/">
accepting the Uighurs</a> into the US would be the most effective way to
break this particular deadlock.<br><br>
</font><font face="Verdana" size=2 color="#990000"><b>A sleight of hand
on detention policies, and further concerns in court<br><br>
</b></font><font face="Verdana" size=2>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.”<br><br>
As
<a href="http://www.andyworthington.co.uk/2009/03/16/guantanamo-the-nobodies-formerly-known-as-enemy-combatants/">
I wrote at the time</a>, 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. <br><br>
In a response filed shortly after the government announced its sleight of
hand, lawyers for some of the Guantánamo prisoners argued, as
<a href="http://www.scotusblog.com/wp/obama-challenged-anew-on-detention/">
SCOTUSblog</a> 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.”<br><br>
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
<a href="http://www.scotusblog.com/wp/us-wins-mostly-on-detention-power/">
SCOTUSblog</a> 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.” <br><br>
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.”<br><br>
This was sufficiently different from the views of other judges -- for
example, <a href="http://counterpunch.org/worthington01302009.html">Judge
Richard Leon</a>, 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.”<br><br>
Nearly a year after <i>Boumediene</i>, 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. <br><br>
Certainly, there have been other disappointments. In February, the
Pentagon’s
<a href="http://www.andyworthington.co.uk/2009/02/23/obamas-humane-guantanamo-is-a-bitter-joke/">
review of conditions at Guantánamo</a> 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. <br><br>
</font><font face="Verdana" size=2 color="#990000"><b>Will the Military
Commissions be revived?<br><br>
</b></font><font face="Verdana" size=2>Also in February,
<a href="http://www.counterpunch.org/worthington02112009.html">I
complained</a> 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
(<a href="http://www.counterpunch.org/worthington10032008.html">Susan
Crawford</a>, 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
prisoner
<a href="http://www.counterpunch.org/worthington07032008.html">Abdul
Rahim al-Nashiri</a>, 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.’”<br><br>
After this, the Commissions went quiet, but on Wednesday Col. Patrick
Parrish, the judge in the case of
<a href="http://www.counterpunch.org/worthington11152007.html">Omar
Khadr</a>, the Canadian who was just 15 years old when he was seized,
half-dead, after a firefight in Afghanistan in July 2002,
<a href="http://ca.reuters.com/article/topNews/idCATRE53S8DJ20090429">
notified his lawyers</a> 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
<a href="http://www.nytimes.com/2009/05/02/us/politics/02gitmo.html?_r=1">
<i>New York Times</a></i> 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.<br><br>
</font><font face="Verdana" size=2 color="#990000"><b>The dark specter of
preventive detention<br><br>
</b></font><font face="Verdana" size=2>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
<a href="http://www.andyworthington.co.uk/2009/03/18/lawrence-wilkerson-tells-the-truth-about-guantanamo/">
a column he wrote in March</a>, 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. <br><br>
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 regularity,
<a href="http://news.bbc.co.uk/1/hi/world/americas/8027547.stm">the
defense secretary announced</a> 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.” <br><br>
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
<a href="http://www.nytimes.com/2007/07/11/opinion/11katyal.html">Neal
Katyal</a>, a law professor who helped overthrow the first incarnation of
the Military Commissions in June 2006 (in the case of
<a href="http://www.andyworthington.co.uk/2008/08/06/a-critical-overview-of-salim-hamdans-guantanamo-trial-and-the-dubious-verdict/">
Salim Hamdan</a>) -- 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.<br><br>
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. <br><br>
As Kenneth Roth, the Executive Director of Human Rights Watch,
<a href="http://www.hrw.org/en/news/2009/03/13/obamas-prisoners-dilemma">
explained in March</a>, “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.”<br><br>
You can draw whichever dystopian conclusion you wish, so long as it’s one
of the following:<br><br>
<ul>
<li>That’s the same as Guantánamo.</font><font size=3></font>
<li><font face="Verdana" size=2>You can’t imprison people, based on
evidence that can’t be tested, for what they may or may not do in the
future.</font><font size=3></font>
<li><font face="Verdana" size=2>Who will be next? The poor? Political
protestors? You and me? </font>
</ul><font size=3><br>
</font><font face="Verdana" size=2><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>
He can be reached at:
<a href="mailto:andy@andyworthington.co.uk">andy@andyworthington.co.uk</a>
<br><br>
<br><br>
</font><x-sigsep><p></x-sigsep>
<font size=3 color="#FF0000">Freedom Archives<br>
522 Valencia Street<br>
San Francisco, CA 94110<br><br>
</font><font size=3 color="#008000">415 863-9977<br><br>
</font><font size=3 color="#0000FF">
<a href="http://www.freedomarchives.org/" eudora="autourl">
www.Freedomarchives.org</a></font><font size=3> </font></body>
</html>