Guantánamo: Idealists Leave Obama’s Sinking Ship

1.12.09

Phillip Carter. Photo © Damon Winter.Last week, lawyer, ex-Army Captain and Iraq veteran Phillip Carter, described by Glenn Greenwald as “a very harsh critic of the Bush administration’s detention and interrogation policies,” suddenly resigned his post as Deputy Assistant Secretary of Defense for Detainee Policy, which he had occupied since April. Carter claimed that he was leaving due to “personal issues,” which may be true, but as Greenwald noted, “the policies Obama has adopted in the last six months in the very areas of Carter’s responsibilities were ones Carter vehemently condemned when implemented by Bush.”

Greenwald then proceeded to explain how, in May 2008, Carter had condemned the Bush administration’s Military Commissions (the trial system for Guantánamo prisoners) as “fundamentally and fatally flawed,” arguing that “the rule of law will prevail only if they are perpetually blocked,” and cited a trial in a “civilian court” (his emphasis) of accused terrorists in France that involved “a combination of open and sealed (i.e., classified) evidence to prove the defendants’ guilt in a six-day trial,” which he regarded as the only viable model for the United States to follow.

How disappointing, then, that, just a month after Carter joined the Obama administration, the President announced, in a major national security speech, that the Commissions were back on the table, and Carter then watched, two weeks ago, as Attorney General Eric Holder announced that, although Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, five other prisoners — previously charged in the Bush administration’s Military Commissions — would face what is apparently a second tier of justice based solely on the government’s belief that their cases are weaker: trials in the revamped Military Commissions, which have been brought back from the dead with the help of Congress.

Greenwald also noted that, in another post in April 2008, Carter expressed dismay at the Bush administration’s decision to charge Ahmed Khalfan Ghailani, a “high-value detainee” held for over two years in secret CIA prisons before his transfer to Guantánamo in September 2006, in a Military Commission “for acts committed before Sept. 11 — to wit, his alleged participation in the bombing of the US Embassy in Tanzania [in 1998].” Carter focused on the following passage in a Washington Post report: “Almost all of his alleged ‘war crimes’ occurred before the Sept. 11 attacks, and most predated the nation’s fight against terrorism. Four co-conspirators in the Tanzania bombing were convicted in US federal courts. Ghailani, too, was indicted in the United States, but federal authorities have opted to try him before the commission, composed entirely of military officers.”

Rounding on the Bush administration, Carter stated:

I’ll be very interested to see how the Bush administration’s lawyers argue their way around the provision of Article 1 that reads, “No Bill of Attainder or ex post facto Law shall be passed”. Setting aside the myriad objections to the military commissions generally, and this case specifically, I think this is going to present a major hurdle for the government.

I’m also concerned about the deliberate decision to take this case away from federal prosecutors … In my opinion, our default choice for the prosecution of suspected terrorists should be federal court … The substantive and procedural due process granted by federal courts has strategic value — it confers legitimacy on the outcome. That legitimacy matters for the struggle against terrorism, and I think it’s crucial that we evaluate our prosecutorial decisions with that strategic calculus in mind.

As Greenwald noted, bringing the story up to date:

While the Obama administration commendably sent Ghailani to New York to be tried in a civilian court, it just announced two weeks ago that Abd al-Rahim al-Nashiri, whose case originated as a criminal investigation with the FBI, would now be turned over to a military commission for prosecution in connection with the 2000 bombing of the USS Cole — raising all of the serious objections Carter voiced to the Ghailani case.

There’s more to Greenwald’s article — regarding Carter’s opposition to the use of the “state secrets” privilege, his concerns regarding the distinction between conventional wars of the past and the “War on Terror” when claiming presidential power, and his willingness to prosecute Bush administration officials and lawyers for war crimes, all of which have also been ignored by President Obama — but I’d like now to move onto the second departure from the administration: that of Greg Craig, the former White House Counsel, who resigned on November 13.

Greg Craig and Barack Obama in happier daysCraig is no darling of the left, as is apparent from complaints about his business dealings, including his relationship with Karl Rove, George W. Bush’s former Senior Advisor and Deputy Chief of Staff. However, on national security issues, his departure set the seal on the demise of a period of principled optimism that marked the first few months of the Obama administration, and that has degenerated into chaos and confusion ever since. A former foreign policy advisor to Senator Edward Kennedy and to Secretary of State Madeleine Albright, who served as special counsel in the White House of President Bill Clinton, and directed the team that defended Clinton against impeachment, Craig not only brought a wealth of political experience to Barack Obama’s administration, but was also the main driver of the policies designed to overturn and repudiate the Bush administration’s detention and interrogation policies in the “War on Terror.”

As Massimo Calabresi and Michael Weisskopf explained two weeks ago in an article in Time, “The Fall of Greg Craig,” Barack Obama “tasked Craig with dismantling Bush’s interrogation and detention policies” just four days after the Presidential election, and he took to his new job with extraordinary vigor, “creating one of the largest White House counsel’s offices ever, with dozens of high-powered lawyers, compared with only a handful who served under Bush in early 2001 … Craig’s office was an instant power center in the White House, able to produce answers, memos and ideas seemingly overnight while other parts of the Administration were still getting up and running.”

Despite opposition from the intelligence agencies, Craig drafted the Executive Orders, issued on President Obama’s second day in office, which, singlehandedly, sent a message to the world that the extra-legal horrors of the Bush administration had apparently come to an end. The orders set a one-year deadline for the closure of Guantánamo and called time on the CIA’s use of torture and secret prisons, and President Obama also announced that he was suspending the Military Commissions. Human rights activists were overjoyed, and, as Time noted, “Craig was delivering much of the change Obama had promised during the campaign.”

On March 15, Craig’s insistence on repudiating the Bush administration’s policies and providing the transparent government that Barack Obama had promised was delivered to full effect when, as a result of a long-standing court case initiated by the ACLU, a court deadline was reached regarding the release of classified memos, issued in 2002 and 2005 by the Justice Department’s Office of Legal Counsel, which purported to justify the use of torture. When Craig notified the President that the Justice Department planned to make the memos public three days later, Obama asked for a one-month extension to consider his options.

Gen. Michael HaydenAccording to Time, when Gen. Michael Hayden, the former Director of the CIA, learned of the administration’s intention to release the memos, he “went ballistic,” calling Craig on March 18 and asking him, “What are you doing?” Hayden claimed that, if Obama released the memos, “al-Qaeda would be able to train its warriors to resist the techniques described in their contents.” Craig was apparently unperturbed. “The President is never going to authorize any of those techniques,” he replied, prompting the following response from Hayden: “Lemme get this right. There are no conditions of threat this nation might face that would prompt you to interrupt the sleep cycle of somebody who may have lifesaving information?” As Time described it, “There was a long silence. Craig would not concede the point.”

This showdown may well have been the high point of Greg Craig’s endeavors to reset America’s moral compass, confirming the President’s commitment to non-abusive interrogation techniques, in the face of Hayden’s extraordinary insistence that sleep deprivation — a clear component of the torture techniques favored by the Bush administration — ought to continue to be part of the agency’s operations.

As Time explained, Hayden refused to back down, and rallied CIA opposition to Craig’s plans. Former Director George Tenet called his former aide John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, and John Deutch, a CIA Director under President Clinton, called Deputy National Security Adviser Tom Donilon. National Security Council aide Denis McDonough, a former Senate staffer who has “daily access to the President,” was also recruited, and on April 15, as the court’s extension came to an end, Obama “invited eight officers of the CIA’s Counterterrorism Center to make their case against release” at a meeting in the Oval Office. That evening, Obama called Rahm Emanuel, his Chief of Staff, to discuss the memos, and discovered that Emanuel was already discussing it “with about a dozen national-security and political advisers.” After joining the meeting, Obama “asked each to state a position and then convened an impromptu debate, selecting Craig and McDonough to argue opposing sides.”

As Time explained, “Craig deployed one of Obama’s own moral arguments: that releasing the memos ‘was consistent with taking a high road’ and was ‘sensitive to our values and our traditions as well as the rule of law.’ Obama paused, then decided in favor of Craig, dictating a detailed statement explaining his position that would be released the next day.”

What happened next signaled the start of the Obama administration’s retreat from the moral high ground, which led to the sidelining of Craig, and, finally, his resignation. Former Vice President Dick Cheney went on the attack, pollsters noted a drop in Obama’s support among independents, and, as a result, Rahm Emanuel “quietly delegated his aides to get more deeply involved in the process.”

Craig, however, remained focused on how to close Guantánamo, as he was, according to Time, “under pressure to eliminate … indefinite detention without charge or trial and the use of military commissions.” On April 17, he assembled officials from a range of government departments, and explained his plan: to bring some prisoners from Guantánamo to the US to face federal court trials, and also to bring others to settle in the United States. The latter were the Uighurs, Muslims from China’s Xinjiang province whose release into the United States had been ordered in October 2008 by Judge Ricardo Urbina, after the Bush administration declined to challenge their habeas corpus petitions.

Craig, like Judge Urbina, recognized that, because they could not be repatriated (because of fears that the Chinese government would torture them), because no other country could be found that would take them, and because their continued imprisonment in Guantánamo was unconstitutional, they would have to be brought to the United States. According to Time, defense secretary Robert Gates, Secretary of State Hillary Clinton and other senior officials “approved Craig’s plan to release two Uighurs in northern Virginia” as part of “a global game to empty the prison. If the two settled without incident, six more would be let into the US. That in turn would help the State Department persuade other countries to take Gitmo detainees. The hope was that those remaining could be tried in federal courts.”

At the meeting on April 17, security measures were planned for monitoring the Uighurs in their new home, and Craig also called for the development of “a plan to convince Congress and the public that it was a good idea.” The Uighurs’ lawyers had apparently agreed that their clients could be tagged, to play down security fears, and a Defense Department official told Time that the planned arrival of the Uighurs in the US “was a matter of days, not weeks.”

It was a fine and principled plan, and, had it happened, it would, I believe, have made the closure of Guantánamo by January 2010 possible. However, what happened instead is that another Cheney-baiting court case, concerning the release of photos showing the abuse of prisoners by US forces, reared up to derail the administration. On April 16, Craig had explained that the photos would have to be released, and at that point Robert Gates was supportive, and Rahm Emanuel was only concerned about locating a good time to release the information to cause minimal damage. A week later, however, when the government announced its plans to release the photos, senior military figures warned that soldiers in the field would face reprisals, Gates flip-flopped, and Republicans seized on another opportunity to attack the administration.

The uproar over the photos was then revived on April 24, when news of the Uighur resettlement plan was leaked. Senate minority leader Mitch McConnell “launched three weeks of near daily attacks on the idea of letting the Uighurs loose in the US,” and although Dick Durbin, a staunch supporter of Obama and the Majority Whip in the Senate, thought the government could win the fight in Congress, cowardice finally prevailed.

By May 8, when Craig was summoned to a meeting with Obama, the tide had turned. “I don’t like my options,” the President said, in relation to the abuse photos, and although Craig explained that his legal team had found no alternative to releasing the photos, Obama directed him to find a way, which he did, by withdrawing approval and paving the way for a legal struggle that reached the Supreme Court this fall. In a one-line ruling on November 30, the Supreme Court reversed the lower court’s ruling that the pictures be released, citing a provision in the Homeland Security funding bill signed into law on October 28, which authorized the Pentagon to block the release of the pictures, as well as any others which might “endanger” US soldiers or civilians.

Objectively, the refusal to release the photos in May was a distressing volte-face on the part of the administration, but behind the scenes it is now clear that the combined Republican assaults on Obama’s national security credentials led the administration to withdraw completely from Craig’s principled position regarding the Bush administration’s detention policies, compromising on issues that, as Craig had astutely recognized, were not open to compromise or negotiation if they were to succeed in overturning the Bush administration’s toxic legacy.

By the second week of May, Obama had killed the Uighur plan. As Time described it, “Craig never got a chance to argue the case to the President,” and an aide explained, “It was a political decision, to put it bluntly.” Thereafter, Craig was sidelined. The administration failed to fight back when Congress rose up in revolt, threatening to impose its own ban on the release of the photos, withholding funding for the closure of Guantánamo, legislating to prevent prisoners being brought to the US mainland, and interfering in the transfer of prisoners to any other country.

On May 21, Craig, like Phillip Carter, was obliged to watch as President Obama delivered the national security speech in which he not only announced his intention to revive the Military Commissions, but also — presumably to the absolute horror of Craig and Carter — explained that he would continue to hold some prisoners without charge or trial; those who, as he put it, “cannot be prosecuted yet who pose a clear danger to the American people.” By doing so, Obama ignored the sub-text that, if you cannot prosecute someone, it is because the information you are using does not rise to the level of evidence, or is otherwise tainted by torture, and is therefore inherently unreliable.

Six months on, as Greg Craig finally tendered his resignation, the price of subscribing to the Bush administration handbook, instead of standing up to bullying lawmakers and a renegade ex-Vice President, has become distressingly clear.

When it comes to finding new homes for cleared prisoners who cannot be repatriated, the administration finally managed to dispose of ten of the Uighurs, in Bermuda and Palau, although seven still remain at Guantánamo, nearly 14 months after Judge Urbina ordered their release, and dozens of other cleared prisoners face indefinite detention at the US government’s pleasure, because other countries — unenthused by Obama’s inability to bring even a single man to settle on the US mainland — have not rallied sufficiently to the cause.

Moreover, although the administration finally announced federal court trials for the five men accused of involvement with the 9/11 attacks on November 13 (the same day that Greg Craig resigned), Obama and Attorney General Eric Holder not only had to fight back against a wave of Republican fearmongering that has only grown in strength throughout the year, but also lost whatever credibility this should have given them — in the eyes of those whose allegiance is to the rule of law — by announcing that five others would face trials by Military Commission. They also conceded that Guantánamo would not close by January 2010, and let slip that some of those still held — those described by Obama in May as prisoners who “cannot be prosecuted yet who pose a clear danger to the American people” — would likely remain imprisoned forever without charge or trial.

Forgive me if I have oversimplified matters, but it appears to me that the failure to deliver a single, coherent system of justice to the remaining prisoners in Guantánamo, the failure to close the prison by Greg Craig’s deadline, the failure to kill the Military Commissions once and for all, and the acceptance, rather than the elimination of indefinite detention without charge or trial (which is at the very heart of the Guantánamo regime established by George W. Bush) demonstrate what happens when tough battles on points of principle give way to cowardice and political maneuvering, as exemplified in the poisonous compromises embraced six months ago by the Obama administration.

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 I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on The Public Record and Campaign for Liberty.

21 Responses

  1. Zaha Hassan says...

    Do you know what has become of former Gitmo detainee Mamar Ameur, an Algerian national who was living as a refugee in Pakistan when he was arrested in 2002)?

  2. Guantánamo: Idealists Leave Obama’s Sinking Ship by Andy Worthington « Dandelion Salad says...

    [...] Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 1 December [...]

  3. Less same more change, please « Electric Worry says...

    [...] and outs. But i know someone who does. Please take a few minutes to read Andy Worthington’s Idealists Leave Obama’s Sinking Ship. Last week, lawyer, ex-Army Captain and Iraq veteran Phillip Carter, described by Glenn Greenwald [...]

  4. Will Shirley says...

    I remember Berkeley in 1967. The feeling was in the air that the government was shifting and becoming obsessed with Communism and World Domination, and in order to save the world from Communist Expansion we would reluctantly take over the world ourselves. Viet Nam was a kind of experiment, a trial balloon. All political parties live by a system they call Social Darwinism, except their version of Darwinism is truncated and twisted into “Winner takes all!” with an expectation that the coming world order would be Republican.

    In the 70′s a lot of people I knew were preparing for the tanks to roll in the streets. They were seeing more and more intrusions by the government into our private lives, our communications and activities. Not quite McCarthy but nowhere near Athens. We knew some of our phones were tapped because some of us were cops. We were not gun runners or drug lords, but progressives, liberals and some of us wrote articles that got published. We became afraid that our own government was spreading poison to kill certain kinds of citizens. The CIA invented AIDS.

    After two Presidential elections were fixed to put a drunken coke head in the White House we experienced a kind of burn out. All hope is gone. No one seems to want to stop the train wreck. The Patriot Acts were passed by Congress, ceding Constitutional rights of Congress (such as declaring war) to the President. Habeas corpus was removed from our declining bag of rights in clear violation of the Constitution. Voices were raised, tired old men read great speeches to empty rooms, but in the end we have a plutocracy or maybe a feudal federation, or maybe a rotating dictatorship. We do not have a Bill of Rights. We do have secret prisons where people can be taken indefinitely without charges, without contact, without lawyers, but with cattle prods and handcuffs. The nation didn’t change, I believe, except to codify the wrongs done to our Constitutional Republic. The Founders had no idea the kinds of bastards we could produce in 200 years. They had slaves to do their labor, they had mistresses to sooth their brows. Their wives could not vote. How could they have seen the new technologies, the changing societal values and the impact of a sea-to-sea Federation armed with nuclear teeth?

    I’m a student of history. In 60 years I’ve been paying attention to things. I think the change we have seen is reversible, the Constitution is salvageable, but I think we should prepare ahead for the opportunity to re-establish a democratic republic. We should examine the Bill of Rights and the Constitution and consider bringing them up to date, clarifying the intent of the document’s provisions. That bit about the “well armed militia” needs a lot of thought. Should we even have a standing army? Should we provide in the Constitution Service Pack 2 a line prohibiting the construction and/or use of nuclear weapons by the United States? Should we join the rest of the civilized nations and provide a right to health care, maybe even a right to shelter? We need to think about it hard, because I am beginning to faintly hear the sound of tanks on our streets.

  5. Four Men Leave Guantánamo; Two Face Ill-Defined Trials In Italy « freedetainees.org says...

    [...] that extraditions, expulsions or “renditions to justice” are a new tool for a President who has allowed so many doors to shut on his plans to close Guantánamo, but without transparent and reliable assurances that trials will [...]

  6. 116 Guantánamo Prisoners Cleared For Release; 171 Still In Limbo by Andy Worthington « Dandelion Salad says...

    [...] to make announcements that sound as though they mean something. Since May, when President Obama personally dropped a plan, engineered by his counsel, Greg Craig, to bring two cleared prisoners from Guantánamo to settle [...]

  7. 116 Guantánamo Prisoners Cleared For Release; 171 Still In Limbo « freedetainees.org says...

    [...] to make announcements that sound as though they mean something. Since May, when President Obama personally dropped a plan, engineered by his counsel, Greg Craig, to bring two cleared prisoners from Guantánamo to settle [...]

  8. The Jeff Farias Show: Sasha Abramsky + Andy Worthington « Dandelion Salad says...

    [...] gave me the opportunity to discuss my recent article, “Guantánamo: Idealists Leave Obama’s Sinking Ship,” lamenting the departure of White House counsel Greg Craig, who, whatever his other faults, [...]

  9. Happy 8th Birthday Gitmo: an interview with watchdog Andy Worthington « Pluto Press – Independent Progressive Publishing says...

    [...] ones released by Bush) was so intense that he felt he couldn’t take it on, and he did what he did last year, when his counsel Greg Craig was planning to bring some of the innocent Uighurs from Guantánamo to [...]

  10. Obama’s Countdown to Failure on Guantanamo « freedetainees.org says...

    [...] backpedaling, he refused another court order to release photos of the abuse of prisoners in US custody in Afghanistan and Iraq, and followed up [...]

  11. Rubbing Salt in Guantanamo’s Wounds: Task Force Announces Indefinite Detentions | themcglynn.com/theliberal.net says...

    [...] any cleared prisoner to settle in the United States, if they cannot be repatriated, lies with the president, with lawmakers, with the Justice Department and judges in the Court of Appeals and numerous media [...]

  12. Andy Worthington: Swiss Take Two Guantanamo Uighurs, Solve Obama’s Problem says...

    [...] there is one thing we have learned from the Obama administration, since the President shelved plans made last April by his counsel, Greg Craig, to bring the Uighurs to live in the U.S., it is that, [...]

  13. Swiss Take Two Guantánamo Uighurs, Save Obama from Having to Do the Right Thing « Dandelion Salad says...

    [...] there is one thing we have learned from the Obama administration, since the President shelved plans made last April by his counsel, Greg Craig, to bring the Uighurs to live in the US, it is that, [...]

  14. More Dark Truths From Guantanamo as Five Innocent Men Released « freedetainees.org says...

    [...] have followed. However, when the president bowed to pressure from Republican critics and turned down a plan put forward by White House Counsel Greg Craig and backed by Defense Secretary Robert Gates and [...]

  15. CrossTalk on Gitmo: Morphing injustice – Andy Worthington vs Cully Stimson « Dandelion Salad says...

    [...] pleasantly surprised that he agreed with me that some of the Uighur prisoners should have been brought to live in the US last year, that serious mistakes were made in rounding up prisoners in the first place, and that there are [...]

  16. House Kills Plan to Close Guantanamo « Politics or Poppycock says...

    [...] be repatriated because they face the risk of torture to be allowed to settle in the US, as was planned last year by White House Counsel Greg Craig, supported by Robert Gates and Hillary Clinton, until Obama got cold [...]

  17. Andy Worthington: More “Congressional Depravity” on Guantanamo « In The News « Obama America says...

    [...] pledge to close Guantánamo, including opposition within his own party, reflects the President's near-total lack of leadership on this issue since his inaugural pledge to shut Guantánamo." He added: Since his first week in [...]

  18. Arbitrary Government Kidnapping Under the Cloak of ‘Objectivity’ « Little Alex in Wonderland says...

    [...] hopes held by many of us in January 2009. Other examples include Obama vetoing White House Counsel Greg Craig’s plan to bring some Uighurs to live in the U.S. last spring, his decision to revive the reviled military commissions trial system (which he [...]

  19. Holder, Obama And Cowardly Shame Of Guantánamo And 9/11 Trial – OpEd « Eurasia Review says...

    [...] May 2009, when President Obama first bowed to Republican pressure on national security issues, and abandoned a plan by White House Counsel Greg Craig to rehouse on the US mainland a couple of cleared prisoners at [...]

  20. Abandonment Of Guantánamo’s Uighurs - OpEd says...

    [...] Court agreed, and the Uighurs were stranded at Guantánamo. That was in February 2009. Obama then quashed a brave and principled plan by White House Counsel Greg Craig to bring some of the Uighurs to live in the US, and, as the [...]

  21. Pragmatism Over Ideology: Obama’s Failure to Close Guantánamo, and His Love of Drones « Dandelion Salad says...

    [...] position on what would be done with Guantánamo detainees.” Conflict behind the scenes has previously been acknowledged regarding the decision to issue executive orders promising to close Guantánamo within a year, [...]

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