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<font size=3>
<a href="http://www.counterpunch.org/worthington10092009.html" eudora="autourl">
http://www.counterpunch.org/worthington10092009.html<br>
</a></font><font face="Verdana" size=2 color="#990000">October 9-11,
2009<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>Lawyer Blasts
Congress <br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">
Congressional Depravity on Gitmo
</b></font></h1><font face="Times New Roman, Times" size=4>By ANDY
WORTHINGTON <br><br>
</font><font face="Verdana" size=6 color="#990000">I</font>
<font face="Verdana" size=2>n a recent article,
“<a href="http://www.counterpunch.org/http://www.andyworthington.co.uk/2009/10/06/on-guantanamo-lawmakers-reveal-they-are-still-dick-cheneys-pawns/">
On Guantánamo, Lawmakers Reveal They Are Still Dick Cheney’s Pawns</a>,”
I spelled out my despair and disgust at lawmakers from both parties
(their names can be found
<a href="http://www.counterpunch.org/http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=1&vote=00196">
here</a>,
<a href="http://www.counterpunch.org/http://clerk.house.gov/evs/2009/roll408.xml">
here</a> and
<a href="http://www.counterpunch.org/http://www.govtrack.us/congress/vote.xpd?vote=h2009-746">
here</a>), who, since May, have voted for legislation severely curtailing
President Obama’s ability to close the prison at Guantánamo Bay, Cuba by
his
<a href="http://www.counterpunch.org/http://www.counterpunch.org/worthington01232009.html">
self-imposed deadline</a> 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
<a href="http://www.counterpunch.org/http://www.andyworthington.co.uk/2008/12/26/the-ten-lies-of-dick-cheney-part-two/">
Dick Cheney</a> still stalks the corridors of power.<br><br>
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
<a href="http://www.counterpunch.org/http://www.andyworthington.co.uk/2009/08/08/david-frakt-military-commissions-a-catastrophic-failure/">
some revision of the horribly flawed Military Commission trial system</a>
favored by the Bush administration.<br><br>
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
<a href="http://www.counterpunch.org/http://www.miamiherald.com/news/americas/guantanamo/story/1269871.html">
Associated Press</a> 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.”<br><br>
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
<a href="http://www.counterpunch.org/http://www.andyworthington.co.uk/2009/05/21/transcript-of-president-obamas-speech-about-guantanamo-and-terrorism-may-21-2009/">
a major national security speech</a> in May, when he stated: <br><br>
</font>
<dl>
<dd>[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.”<br><br>
</dl>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
<a href="http://www.counterpunch.org/http://www.reuters.com/article/domesticNews/idUSTRE5965MH20091007">
Reuters added</a>, 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.”<br><br>
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.<br><br>
For these lame apologies for legislative scrutiny, lawmakers were
severely chastised by the Supreme Court in June 2008, when the nation’s
senior judges
<a href="http://www.counterpunch.org/http://www.counterpunch.org/worthington06132008.html">
restored the prisoners’ habeas corpus rights</a> 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
<a href="http://www.counterpunch.org/http://www.counterpunch.org/worthington10172007.html">
Mohammed Jawad</a> 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.<br><br>
Drawing on the experience of Mohammed Jawad -- just one of the 30
prisoners (out of 38 in total) whose
<a href="http://www.counterpunch.org/http://www.counterpunch.org/worthington07312009.html">
release has been ordered by a judge</a> 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
<a href="http://www.counterpunch.org/http://www.andyworthington.co.uk/2009/10/05/75-guantanamo-prisoners-cleared-for-release-31-could-leave-today/">
an article I had written</a> 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.”<br><br>
Crucially, Lt. Col. Frakt explained:<br><br>
<dl>
<dd>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. <br><br>
</dl>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:
<br><br>
<dl>
<dd>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
<a href="http://www.counterpunch.org/http://www.counterpunch.org/worthington02192009.html">
should qualify for political asylum</a> -- shows the extent of
Congressional depravity on any issues related to detainees.<br><br>
</dl>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.<br><br>
<br>
Andy Worthington</b> is a British journalist and historian, and the
author of
'<a href="http://www.counterpunch.org/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.counterpunch.org/http://www.andyworthington.co.uk/">
www.andyworthington.co.uk</a> He can be reached at:
<a href="http://www.counterpunch.org/mailto:andy@andyworthington.co.uk">
andy@andyworthington.co.uk</a> <br><br>
<br><br>
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