Obama Returns To Bush Era On Guantánamo

4.5.09

Two distressing pieces of news emerged last week regarding the Obama administration’s plans to close Guantánamo, and both were delivered by defense secretary Robert Gates in testimony to the Senate Appropriations Committee.

Discussing what would happen to the remaining 241 prisoners, Gates announced that the question was “still open” as to what the government should do with “the 50 to 100 — probably in that ballpark — who we cannot release and cannot try.” He also announced that the much-criticized Military Commission trial system, suspended for four months by Barack Obama on his first day in office, was “still very much on the table.”

Both admissions indicate that, when it comes to Guantánamo, it is beginning to appear that the much-vaunted change promised by Barack Obama on the campaign trail has actually involved nothing more than imposing a closing date on Guantánamo, but maintaining the Bush administration’s approach to the men still held there.

Back in Bush’s day, for example, those “who we cannot release and cannot try” 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 the fruit of torture or other abuse.

As someone who has studied the story of Guantánamo and its prisoners in detail over the last three years, I’m aware that much of the information compiled by the Bush administration for use against the prisoners at Guantánamo was obtained through torture or coercion, and is therefore unreliable, and that other, equally unreliable information was secured through the bribery of other prisoners.

As a National Journal investigation revealed in 2006, one prisoner, described by the FBI as a notorious liar, made false allegations against 60 prisoners in Guantánamo in exchange for more favorable treatment, and in February this year the Washington Post published the sobering tale of another informant, whose copious confessions should have set alarm bells ringing. In both cases, however, there is no indication that the officials responsible for compiling the information examined by the President’s review team have acknowledged that a substantial number of allegations against the prisoners are actually worthless.

Moreover, the defense secretary’s talk of 50 to 100 suspicious prisoners (above and beyond those regarded as demonstrably dangerous) is at odds with repeated intelligence assessments reported over the years, which have indicated that the total number of prisoners with any meaningful connection to international terrorism is between 35 and 50. To this should be added the recent revelation by Lawrence Wilkerson, Colin Powell’s Chief of Staff, that “no more than a dozen or two of the detainees” held in Guantánamo ever had any worthwhile intelligence.

In addition, the defense secretary’s talk of reviving the Military Commissions is a distressing development for the many critics of the novel trial system invented by Dick Cheney and David Addington, who hoped that the administration would resist all calls to reinstate them, and would, instead, move the relatively few prisoners regarded as genuinely dangerous to the mainland to face trials in federal court.

However, on Saturday, after speaking to Obama administration officials, the New York Times reported that, despite declaring that, as President, he would “reject the Military Commissions Act,” and stating that, “by any measure our system of trying detainees has been an enormous failure,” President Obama was indeed considering reviving the Commissions.

As the Times described it, “administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.” As a result, they said, decision-makers were considering whether to tinker with the rules regarding the use of coercive interrogations and hearsay, in what the Times described as “walk[ing] a tightrope of granting the suspects more rights yet stopping short of affording them the rights available to defendants in American courts.”

The “tightrope” analogy, though apt, is also something of an understatement. Almost universally derided in their seven-year history, the Commissions demonstrated, above all, that inventing a legal system from scratch was a poor substitute for respecting the laws which have served the Republic well for over 200 years.

Nor can it be claimed that the federal court system is incapable of dealing with terrorism cases. As was explained in a 2008 report by Human Rights First, “In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts” (PDF), over 100 terrorism cases have been prosecuted successfully in the federal courts in the last 15 years.

Moreover, last Thursday, as Robert Gates was telling the Senate that the Military Commissions were still “on the table,” the Justice Department was taking a very different line in the case of Ali al-Marri, a legal US resident who was held in extreme isolation for nearly six years without charge or trial as an “enemy combatant” in a US naval brig, until he was returned to the federal justice system by the Obama administration.

As al-Marri accepted a plea agreement, and admitted that he had been sent to the US as an al-Qaeda “sleeper agent,” Attorney General Eric Holder announced that the result “reflects what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which this nation was founded and the rule of law.”

To remove the stain that Guantánamo has left on the reputation of the United States as a nation founded on the rule of law, Mr. Holder’s words should be repeated to him every time that the administration attempts to turn back the clock to the days of George W. Bush, with its dangerous talk of finding new ways to justify holding prisoners without charge or trial, and its willingness to revive a trial system despised as nothing more than a “kangaroo court.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published exclusively on the website of the Future of Freedom Foundation.

For a more detailed review of President Obama’s progress — or lack of it — regarding the closure of Guantánamo, please see Obama’s First 100 Days: A Start On Guantánamo, But Not Enough, which looks in more detail at Robert Gates’s proposal to hold 50 to100 prisoners without charge or trial in some form of preventive detention, but only mentions in passing the New York Times story about the administration’s plans to revive the Military Commissions.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

19 Responses

  1. Frances Madeson says...

    I know I’m risking a perfect slathering of foaming dog drool from Talking Dog here, but what if the Military Commission system under President Obama could be re-configured (perhaps similarly to Lincoln’s use of military tribunals to try American citizens during the Civil War, which were not judged either then, or by history, to be kangaroo courts per se) to deliver justice more swiftly than the backlog in the Federal court system would allow? 100 cases in 15 years is not exactly speedy. In that scenario, where the procedures are sound and oversight is guaranteed, would you consider its use?

    I don’t think Military Commissions are essentially good or essentially evil, though the system in the Bush-era was horribly abused and is understandably associated with the extreme perversion of justice. But, what if it could be reclaimed, redeemed and used well as an efficient alternative? Maybe that’s what Mr. Gates has in mind, as a sort of amends for past horrors, and simultaneously to attempt to restore the legitimacy of the Pentagon as a purveyor of justice? It wouldn’t exonerate Cheney and Addington one iota, but it could possibly have the effect of taking the refuse strewn around the military justice landscape and using it to build shelter for those in need of it, like a Michael Reynolds (Garbage Warrior) abode constructed from dirt-filled discarded tires and plastic bottles.

    I wish some of the detainees’ attorneys would weigh in on this. Could they have any faith in an alternative system administered by the military in at least some of the more open and shut cases of the innocent, simply as a means of getting to the finish line faster? Could it be considered in terms as simple as mediation in Small Claims Court, as opposed to going (and waiting for the opportunity to do so) before the bench? Could this idea work as a deliberately fashioned two-tiered system, but one in which the defendants can opt in or out?

    I don’t know, Andy, it’s kind of exciting to think about it.

  2. the talking dog says...

    In my interview with former GTMO prosecutor Lt. Col. Darrel Vandeveld, he had the following suggestion:

    “If I were forced to predict the future course of our activities at GTMO, through an admittedly dimly-lighted lens, I would envision the continuation of the Commissions in a modified manner that would conform to accepted standards of international law and to our own basic, inviolable notions of justice. Major [David] Frakt has written a law review article on this subject (which he may now regret), articulating some of the modifications/wholesale changes that might be feasible and acceptable.

    “So, my advice to President Obama reduces to this: if trials in Article III courts are determined to be imprudent, time-consuming, or to involve too many Constitutional uncertainties, then reform the Commissions by the following: supplement your initial Executive Order with a more specific, imperative directive that ALL evidence be assembled on each detainee immediately, no matter the resources required to do so. Countenance no claims that the task is unattainable. Replace the current Convening Authority, Chief and Deputy Chief Prosecutors, whose failures are undeniable and who, in any event, no longer possess a shred of credibility. Instruct the military services’ top lawyers or “TJAGs” to conscript the most qualified prosecutors available, from whatever source (most probably the reserves, many of whose members are highly-experienced civilian prosecutors). Order the service TJAGs to relocate the entire operation to GTMO (currently, the prosecution and defense have offices in Northern Virginia!). Further, mandate that the Military Judges assigned to the Commissions be relocated to GTMO for the duration as well, holding court proceedings as rapidly as equity allows (before the President’s EO, the Commissions would meet at GTMO perhaps once a month –- an unacceptably glacial pace), and to endeavor, consistent with the modified Commissions law and regulations, to complete all trials no later than 21 January 2010. Refuse to release any military personnel from active duty until the mission is complete. Knowing the soldier’s life as I do, this last step will instill the requisite urgency and effort all but abandoned in the preceding seven years. Finally, I would advise the President that after the fair, equitable and just trials are completed, to order the prison camps at GTMO destroyed — bulldozed to the ground, not in an attempt to erase the past, but as a means of recognizing the abandonment of our American values that took place there. Put a decisive end to GTMO.

    “In sum, if the detainees cannot be tried in US federal courts, replicate the intelligent, reasoned, and highly-regarded Nuremberg trials to the extent possible at GTMO. Restore America as a force for good in the world. Complete the mission at GTMO, with honor and expeditiousness –- not dishonor and expediency.”

    I’ll defer to Col. Vandeveld; I will, however, suggest that if so much as an iota of his advice is not followed TO THE LETTER, then the commissions cannot– CAN. NOT. proceed. AT. ALL. Since I KNOW that Col. Vandeveld’s advice will not be taken by the Obama Administration, which has shown in its first 100 days that it would do exactly what we all feared it would, to wit, elevate rhetoric and public relations over substance (think “dishonor and expediency”, to use Col. Vandeveld’s words), I think it safe to say that we can fully expect the commissions to be “reanimated” in exactly the form in which they were in when they were put into suspended animation, warts, embrace of torture, and all.

    Amazingly, it seems that the Obama Administration is hellbent on taking upon itself the role of professional horror movie director: first, it aimed to reanimate “zombie banks”, and now, it seems, it aims to reanimate the zombie military commissions. Honestly, at this stage, it’s not as if the Obama Administration is really capable of disappointing anymore, as there is less and less good reason to have any expectations of it.

    TD’s interview with Darrel Vandeveld is here:
    http://thetalkingdog.com/archives2/001262.html

  3. Frances Madeson says...

    For better or worse, richer or poorer, in sickness and in health,TD always makes my heart beat faster. I’m going to pretend I stopped reading his comment after the word expediency, end quote.

  4. Megan Rice says...

    The wisdom of all 4 in this urgent of urgent issues touching our entire Cosmos is GIFT to Obama. WHO will deliver these comments to him PERSONALLY? Surely he is not untouchable. Our prayer-energy accompanies this gift. May he receive it and ponder it with the time and receptivity it deserves in the name of the entire Creation.

  5. Andy Worthington says...

    Hi Frances,
    I have to say that I think what has led the Obama administration to consider reviving the Commissions is a fear that, in federal court, it might be possible to lose cases, given the use of torture, and I must add that I strongly disagree with this fear.

    I believe that, in the cases of those who were genuinely involved in the 9/11 attacks, the African embassy bombings and the bombing of the USS Cole — if evidence exists to demonstrate their involvement, beyond what was tortured out of them — it is inconceivable that a jury will not convict them.

    Moreover, although the outcome will hardly be justice at its finest, I don’t think that, in these cases, a typical jury will care about whatever sleight of hand is required to suppress or sideline the mention of torture, as the case of Jose Padilla demonstrated:
    http://www.andyworthington.co.uk/2007/09/04/jose-padilla-more-sinned-against-than-sinning/

    Part of the interpretation depends on trying to second-guess how many prisoners the Obama administration wants to try, and I’d suggest that Lawrence Wilkerson’s figure of 25 would be a useful starting (and ending) point:
    http://www.andyworthington.co.uk/2009/03/18/lawrence-wilkerson-tells-the-truth-about-guantanamo/

    And let’s not forget that, of these men, not all are even accused of being terrorists in the KSM league, and that in some cases, therefore, we might have to be looking at the kind of plea arrangement worked out for Ali al-Marri, which had some on the right howling about how 15 years is too short a sentence if he really was an al-Qaeda sleeper agent.
    http://www.andyworthington.co.uk/2009/05/01/dictatorial-powers-unchallenged-as-us-enemy-combatant-pleads-guilty/

    To this, of course, I can only reply that the government is lucky to get anything at all after holding him outside the law for so many years, and, if this kind of a deal is what we’ll have to accept in some cases, then so be it: it must stand as a lesson never to stray so horribly outside the law again.

    However, the idea that Barack Obama and Eric Holder should dress up as Dick Cheney and David Addington to revive the despicable Military Commissions is really too horrible to think about. Perhaps — just perhaps — if all of Darrel Vandeveld’s demands were met, but that hardly seems likely with the involvement of a Defense Department that still bears far too much of the taint of the Bush years.

    Trust the courts. Trust the juries. Don’t trust the two men who did more than any others to transform America from a nation founded on the rule of law to one based solely on Executive unaccountability.

  6. Andy Worthington says...

    And TD, I’m with you.
    I don’t think we should even be entertaining the thought that the Commissions can be revived fairly. I admit that I enjoyed my year and half chronicling them as they stumbled from one self-made disaster to another, but the entire process was a disgrace, and Obama should be made to remember that, having boldly opposed the Military Commissions Act as a Senator, he PROMISED to get rid of it as President.

  7. New Chief Prosecutor Appointed For Military Commissions At Guantánamo by Andy Worthington « Dandelion Salad says...

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