When the Obama administration’s Detention Policy Task Force, established by Executive Order on the President’s second day in office, conceded last week that it would miss its six-month deadline to issue its recommendations about how to close Guantánamo, many observers focused on whether this meant that Obama would fail to meet his deadline of Jan 21, 2010 for the closure of the prison, and missed the bigger story, which was only revealed through close scrutiny of the Task Force’s five-page interim report (PDF).
Disturbingly, this document revealed that the Task Force envisages three options for dealing with the prisoners who will not be released from Guantánamo: trials in federal courts, trials by Military Commission (the “terror trials” introduced by former Vice President Dick Cheney in November 2001, and revived by Congress in 2006 after the Supreme Court ruled them illegal), and indefinite detention without charge or trial.
These proposals accord with plans outlined by the President in a major national security speech in May, but they are no more acceptable now than they were then, for one simple reason: they are designed not to secure justice, but to prevent any of the prisoners who fit into these three categories from being released; in other words, as Glenn Greenwald reported for Salon, “If they know they’ll convict you in a real court proceeding, they’ll give you one; if they think they might lose there, they’ll put you in a military commission; if they’re still not sure they will win, they’ll just indefinitely imprison you without any charges.”
The proposals put forward by the Task Force — and clearly endorsed by Obama — are bitterly disappointing, not only because they are so shamefully dismissive of the presumption of innocence, and because they reveal a desire to further turn the judicial system on its head by endorsing preventive detention, but also because they are cowardly in the extreme.
There is, to be blunt, no need for the administration to revive the widely reviled Commissions (criticized in the past by most leading Democrats, including Barack Obama), because the federal courts are more than capable of prosecuting terror suspects, having successfully done so on more than a hundred occasions in the last 15 years. The Task Force itself admitted in its interim report that “A broad range of terrorism offences with extraterritorial reach are available in the criminal code and procedures exist to protect classified information in federal court trial where necessary,” and also noted, “The evidentiary rules at trial are well-established, and experienced prosecutors can often find ways to overcome any challenges those rules may pose to [the] introduction of critical evidence in specific cases.”
In addition, as Glenn Greenwald also explained, “as a result of breathtakingly broad criminal laws in the US defining ‘material support for terrorism,’ there are few things easier than obtaining a criminal conviction in federal court against people accused of being terrorists.”
Moreover, given that successful prosecutions have taken place in cases where no evidence of actual terrorist activity is required, there is no excuse whatsoever for proposing to continue to hold some prisoners indefinitely, using a form of “preventive detention” for which Congressional approval will have to be sought. If, after seven and a half years, the government cannot even reach the low evidentiary hurdle required by a federal court, then it should stop pretending that it has grounds for believing that these particular prisoners are too dangerous to be released, and let them go.
For the Guantánamo prisoners, it is worrying enough that everyone involved in reviewing their cases for the government appears to have forgotten a number of crucial facts that tend to undermine the illusion that the prison still contains a significant number of terrorists: namely, that the majority of the prisoners were not seized on a battlefield, but were handed over by the US military’s Afghan and Pakistani allies, at a time when bounty payments, averaging $5,000 a head were widespread (PDF); that they were never screened according to the Geneva Conventions’ competent tribunals — held close to the time and place of capture — to establish whether they were actually combatants, or civilians caught up in the fog of war; that, subsequently, they were never adequately screened at Guantánamo, where the process instigated by the Pentagon — the Combatant Status Review Tribunals — was described by a former insider, Lt. Col. Stephen Abraham, as a farce, in which most of the material put forward as evidence was “garbage,” and the entire process was designed to rubberstamp the Bush administration’s decision that they were all ”enemy combatants,” who could be held without charge or trial; and that the majority of the supposed evidence against the men has, indeed, been revealed as deeply untrustworthy when scrutinized by District Court judges.
Following the Supreme Court’s ruling last summer that the prisoners have habeas corpus rights, judges in the District Courts have, in 84 percent of the cases on which they have delivered a verdict, ruled that the government either had no case at all, or that its cases were based upon statements by unreliable witnesses, who were tortured, coerced or bribed, or had severe mental health problems. In addition, judges have also poured scorn on attempts to create a “mosaic” of intelligence from these and other sources that does not stand up to close examination.
The fact that the Task Force appears not to have fully understood the scale of the Bush administration’s incompetence regarding the capture and interrogation of the Guantánamo prisoners, and the manifold problems with the supposed evidence against them counts, in the end, as a distressing example of the sort of paranoia for which Dick Cheney is best known triumphing over the kind of common sense and dedication to the pursuit of justice for which Barack Obama seemed to stand just a few short months ago.
Moreover, the Task Force’s egregious errors are not confined just to the present, and to the question of what will happen to the Guantánamo prisoners. As the interim report states, “The Detention Policy Task Force has thus far focused much of its work on developing options for the lawful disposition of detainees held at Guantánamo Bay. Important questions remain concerning our policies in the future regarding apprehension, detention, and treatment of suspected terrorists, as part of our broader strategy to defeat al-Qaeda and its affiliates.”
The authors of the report then indicate that they are involved in an ongoing analysis of a number of questions relating to the future, including “what the rules and boundaries should be for any future detention under the rule of war,” ignoring, both in the present, and in their deliberations about the future, that the answer has, in fact, been obvious all along, and that, as it appears from this hideous and worrying document, all the talk of alternative trial systems and preventive detention is nothing more than a conjuring trick to disguise policies that, essentially, cleave closely to the arrogant and lawless innovations conceived by senior officials in the Bush administration.
And the answer that has been obvious all along? It goes like this: If your enemy is a combatant, seized in wartime, then you hold him as a prisoner of war according to the Geneva Conventions, which prohibit inhumane treatment and coerced interrogations, until the end of hostilities. And if your enemy is a terrorist, then you hand him over to interrogators who know how to get a man to talk without using torture, according him the procedural protections in the Bill of Rights, and you put him on trial in a federal court.
It really is that simple.
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 also see my definitive Guantánamo prisoner list, published in March 2009.
As published exclusively on the website of the Future of Freedom Foundation.
For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).
I’m very disappointed with Obama’s handling of this. Those people should be released. I know there are a few bad apples in there, but 99% of those people are innocent.
[…] by Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 27 July 2009 […]
It’s disturbingly close to what I had feared might happen. We are offered a clear speaker instead of a babbling moron, but as far as following the rule of law, that option has been smashed to bits on the floor. We are still in Bushland. I tried to explain to neighbors and friends that after fixing two federal elections it made no sense the people in charge would allow us a free election with a shot a a new policy. It made more sense they would offer the so-called “lefties” either a black man or a white woman. Then they would continue to pour money into certain bank accounts until the world stopped lending to us, in which case they might start selling bits of the government. I’m quite serious about this scenario, it makes perfect historical sense. As the empire breaks up the profiteers flock like vultures until one morning the citizens wake up to a broke and bankrupt government. Maybe some day we’ll decide to rule ourselves: democracy instead of being ruled over by the wealthy: republic.
Readers, Andy – please verify/corroborate with links and/or refute the following information and concerns:
[…] Andy Worthington, July 29, 2009 […]
Peter Honigsberg (“Our Nation Unhinged”) writes that special administrative measures (“SAMs”) against John Lindh were relaxed in March of this year. http://www.cubaniguana.net/Updates.html HOWEVER…
According to Amy Goodman, so-called Communications Management Units of CMUs http://www.democracynow.org/2009/6/25/exclusive_animal_rights_activist_jailed_at
were also used to house everyone’s favorite kind of domestic terrorists, animal rights activists, as well as, of course… Muslims http://www.democracynow.org/2009/4/17/little_guantanamo_secretive_cmu_prisons_designed
The ACLU is suing over the practice: http://www.huffingtonpost.com/2009/06/18/aclu-sues-over-secretly-c_n_217688.html
The fact is that the national security state is already here, all these things tell us are some of the names it is using for its specific apparati.
Notwithstanding all the extremely unpromising things that have transpired in the first six months, the Obama Administration may well step things up if for no other reason just so that the President can’t be called a liar, and at least clear GTMO itself out (or, if nothing else, move it, say, to one of the Communications Management Units, which readers should be aware are still more liberal than GTMO itself in terms of what they restrict and allow of inmates).
Thanks for the comment. I’m not sure I’d put the figure as high as 99 percent, but then again, the only real way to find out is to pursue the habeas cases — or put the prisoners on trial in federal courts. It’s the Justice Department’s delay and obstruction in the habeas litigation that bugs me in particular.
There could be a bit of political maneuvering going on with regard to the Guantanamo prisoners, in that Obama doesn’t want to play into Republican hands by openly revealing the extent of the Bush administration’s detainee folly. I think there’s something in that, but it’s stretching things for me to make it the whole explanation.
As for the bigger picture, I think you’re probably right about too many vested interests and power. It’s why we only ever get tiny changes of any value, when what we need is something much more sweeping …
Thanks for raising the issue of the CMUs, which I just haven’t had time to go into, although it’s a very important story.
As for whether the Guantanamo prisoners will end up there, I’m still hoping that somehow the administration will find a way to free two-thirds of them by the deadline so that only the so-called “hardcore” — those who will face trials — will end up transferred to prisons on the US mainland, but I’m prepared to admit that this might involve some wishful thinking …
[…] than 50” other prisoners for release, after their cases were reviewed by the inter-departmental Detention Policy Task Force (established by Executive Order on Obama’s second day in office), which, as ABC News explained, […]
[…] was that the Obama administration’s focus was not on the courts, but on the inter-departmental Detention Policy Task Force established to review the prisoners’ cases as part of the Executive Orders issued on Obama’s […]
[…] gravy. Why did I even vote for this guy? (Oh, right). Published […]
Nice link above. Check out Jon Custer’s site. Very dry observations.
[…] (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July […]
[…] to me. The hardest thing should be coming up with countries to take some of the men, not still sitting around discussing whether it’s still worth holding them. We should be focusing on the — whatever it is, two […]
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