President Obama’s hopes of closing Guantánamo, which were already gravely wounded by his inability to meet his self-imposed deadline of a year for the prison’s closure, now appear to have been killed off by lawmakers in Congress.
Although the House Armed Services Committee was happy to authorize, by 59 votes to 0, a budget of over $700 billion for war ($567 billion for “defense spending” and $159 billion for the wars in Afghanistan and Iraq) for the fiscal year beginning in October, lawmakers unanimously saw through — and turned down — a fraction of this budget for what the administration had labeled a “transfer fund” — money intended to close Guantánamo and buy a new prison in Illinois for prisoners designated for trials or for indefinite detention without charge or trial.
The administration had attempted to hide its intentions behind this vague wording, because senior officials were acutely aware of ferocious opposition in Congress to the closure of Guantánamo. Fueled by opportunistic Republicans and backed by cowardly Democrats, Congress had only been prevented at the last minute from passing an insane law last year, which would have prevented the administration from bringing any prisoner to the US mainland for any reason (even to face a trial) and had only relented in October, allowing prisoners to be brought to the US mainland for trials, but not for any other purpose.
Despite this, the House Armed Services Committee is now trying to withdraw from even this concession to the administration’s aims, including, in a summary of the bill, a prohibition on using even the tiniest fraction of the war budget (around $350 million) to buy a new detention facility. As Spencer Ackerman explained in the Washington Independent:
According to the bill summary, the bill now requires Defense Secretary Robert Gates to give Congress a report that “adequately justifies any proposal to build or modify such a facility” if it wants to move forward with any post-Guantánamo detention plan. “The Committee firmly believes that the construction or modification of any facility in the US to detain or imprison individuals currently being held at Guantánamo must be accompanied by a thorough and comprehensive plan that outlines the merits, costs, and risks associated with utilizing such a facility,” the summary text read. “No such plan has been presented to date. The bill prohibits the use of any funds for this purpose.”
This is a depressing example of how even a morally and ethically flawed attempt to close Guantánamo is unacceptable to both Republican and Democrat lawmakers, who have retreated to a position that the Bush administration, at its most extreme, would have been proud of.
For those of us who don’t mind prisoners being brought to the US mainland to face trials (35 in total, according to Obama’s Guantánamo Task Force), but who are implacably opposed to the administration’s contention that it can hold some prisoners indefinitely (48 of the remaining 181 prisoners), it is by no means a tragedy that the plan to replicate some of Guantánamo’s most unpalatable innovations on American soil has been prevented.
In my more optimistic moments, it strikes me that, with the option of transferring prisoners to the US mainland denied, the administration will — if it remains committed to the closure of Guantánamo — have to rethink its plans, and that one way of doing this would be to give up on its intention to hold 48 men indefinitely, which, to put it bluntly, is unconstitutional.
In truth, the claim that 48 men should be held indefinitely has always been something of a deception, because these men have outstanding habeas corpus petitions in the District Court in Washington D.C., where judges, rather than an unaccountable Task Force, are making their own decisions about whether they are, as President Obama explained in a major national security speech last May, a special category of prisoner who “cannot be prosecuted yet who pose a clear danger to the American people.”
So far, the judges have ruled that just 14 men can continue to be held indefinitely, although it’s noticeable that, in denying their habeas petitions, they have generally not concluded that they “pose a clear danger to the American people,” but have, instead, found that they were minor players in the Taliban, or in al-Qaeda forces supporting the Taliban. However, according to the detention policies they are required to follow, the judges are not allowed to distinguish between the terrorists of al-Qaeda and the foot soldiers of the Taliban when it comes to consigning men, on an apparently sound legal basis, to endless incarceration.
This problem relates to the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (or those who harbored them). Combined with a Supreme Court ruling (in Hamdi v. Rumsfeld, in 2004) that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF, this is the rationale used by the administration to justify the prisoners’ detention, and, although different judges have expressed different opinions about who these individuals are, they have broadly agreed that, to qualify as an “enemy combatant” — or, in Obama’s new world, an “alien unprivileged enemy belligerent” — the government is required to prove, by a preponderance of the evidence, that these individuals supported al-Qaeda and/or the Taliban.
This lack of distinction between al-Qaeda and the Taliban is clearly ridiculous, as was noted last year by two judges, Judge James Robertson and Judge Thomas Hogan, who made a point of stating, when refusing to grant the habeas petitions of two Yemenis, Adham Mohammed Ali Awad and Musa’ab al-Madhwani, that they did not regard either man as an ongoing threat. Regarding Ali Awad, Judge Robertson noted, “It seems ludicrous to believe that he poses a security threat now,” and in al-Madhwani’s case, Judge Hogan stated that he “did not think Madhwani was dangerous,” noted that he has been a “model prisoner” since his arrival at Guantánamo in October 2002, and added, “There is nothing in the record now that he poses any greater threat than those detainees who have already been released.”
Moreover, this inability to make a distinction between al-Qaeda and the Taliban — or al-Qaeda forces supporting the Taliban in military operations in Afghanistan, rather than in activities related to terrorism — is one that I have been railing against for some time now, for the simple reason that the former should be put forward for trials, whereas the latter — if they should continue to be held at all — should be held as prisoners of war according to the Geneva Conventions.
I don’t see this happening anytime soon, of course, because no one even wants to talk about it, but when the House Armed Services Committee moves so decisively to prevent the closure of Guantánamo — and every sign is that the House will approve their amendment this week, and the Senate Armed Services Committee will follow suit at the end of the month — the closure of Guantánamo now requires a new kind of thinking.
To my mind, this should involve, first of all, more respect for the District Court’s habeas rulings than has been shown to date. Over the last 20 months, judges have granted the habeas petitions of 35 prisoners, and along the way have done more to demolish claims that Guantánamo holds “the worst of the worst” than any other forum, exposing how much of the government’s supposed evidence consists of unreliable statements made by the prisoners themselves or by their fellow prisoners, and also exposing how torture, coercion and the bribery of prisoners with better living conditions have played a major role in making these statements unreliable. Despite this, the administration has failed to take advantage of these rulings in its dealings with Congress, and has preferred to either appeal them, or to release those who have won their petitions with extreme reluctance.
In addition, rethinking the closure of Guantánamo should involve highlighting the fact that 96 of the 181 men still held have been cleared for release, reviving plans for returning dozens of cleared men to Yemen (which were shelved in the most cowardly manner after it was revealed that the would-be Christmas Day plane bomber, Umar Farouk Abdulmutallab, had trained in Yemen), and — although I expect hell to freeze over before this comes to pass — renewing calls for cleared prisoners who cannot 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 feet.
This could best be achieved by allowing US citizens access to the stories of cleared prisoners released in other countries who are living peaceful lives, and, if it’s of any use, I’m happy to help on this front, as I’ve spent much of the last three months traveling around the UK with a former prisoner, Omar Deghayes, showing “Outside the Law: Stories from Guantánamo” (a film I co-directed, in which Omar plays a major part), and can guarantee that giving people the opportunity to meet Omar (after they have seen his pained and eloquent testimony about his ordeal) is a perfect way to demonstrate that colossal mistakes were made — and continue to be made — at Guantánamo, that many innocent men were seized, and that many of these innocent men are still held.
And finally, to return to the confusion between al-Qaeda and the Taliban that is at the heart of Guantánamo’s detention problem, rethinking the closure of Guantánamo should involve a recognition that the failure to distinguish between al-Qaeda terrorists and Taliban foot soldiers is unfairly consigning men to indefinite detention as terrorists when they should be held as prisoners of war. In addition, it should also provide an opportunity to reflect on the more fundamental question of whether, over eight years after most of the men who are still held at Guantánamo were first seized, the Authorization for Use of Military Force is a valid reason for detention at all, when the Geneva Conventions and the criminal justice system should suffice.
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, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and currently on tour in the UK), my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.
For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. 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), 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 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), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010), An Insignificant Yemeni at Guantánamo Loses His Habeas Petition (April 2010), With Regrets, Judge Allows Indefinite Detention at Guantánamo of a Medic (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), Why Judges Can’t Free Torture Victims from Guantánamo (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), Guantánamo and Habeas Corpus: Consigning Soldiers to Oblivion (May 2010), Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo (May 2010).
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), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009), Dark Revelations in the Bagram Prisoner List (January 2010), Bagram: Graveyard of the Geneva Conventions (February 2010).
[…] MoveOn.orger’s are getting restless, Guantanamo is taking more evil doing al TaliQaedaban and Congressman Grayson still thinks some of us care how much fake wars […]
Nothing like a good ol’ government scam to show the true heart of that beast we place in power..
Gitmo is the scam. A lie, along with Bagram and the other hidden from view hell holes – Change we never had and most certainly could never believe in.
If Obama wanted to close Gitmo, it would have been done but how else can he justify the hate he helps induce; the fear he helps to monger. Sure he ain’t no Bush/Cheney – the torturing sadists of the 21st century, but he is showing a blackened oily soul just like the rest of the moral-less cuckolds to the military corporatist machine put in place.
We in the US have elected (no, not really…we THINK we have elected) the core of a rotted government. One that no longer comes close to resembling the experiment in “liberty and justice” started in the 18th century .
Our exceptionalism has begotten the evil of Gitmo – we get what we deserve; set our selves up to fail and refuse to see our own culpability in the hate running rampant
Thanks for the comments, my surfing friend. Spot-on, sadly.
Here are a few comments from readers of Common Dreams:
Paranoid Pessimist wrote:
Despite his campaign promises, the president, in my view, has no interest in closing Guantanamo or doing anything else that limits Executive Branch power. I’ve always had the feeling with him, and with all recent presidents, that, once elected, someone sits them down and says, “You know all that stuff you said during the campaign? Well, forget most of it. Here’s a list of what you can and cannot actually do or say.”
Presidents are front men (this is not a new idea; Gore Vidal has been saying it for decades). This president is pretty good and manipulating congress to do what needs to be done so he can seemingly avoid taking direct blame. That’s what he was groomed in Chicago for, that’s what he does, and to expect anything different is to have one’s expectations dashed. I wish this president WERE the guy Glenn Beck and Rush Limbaugh were talking about, but he isn’t
And yes, if you want to jump on my case because I voted for him, you may do so. I liked what he said and voted for him in the hopes that he might at least mean and do a little of it. His b.s. was more palatable than the other guy’s, and none of the third party candidates had a chance. So, to use H.L. Mencken’s phrase, I held my nose and did my duty.
I suspect if Dennis Kucinich were elected things would turn out pretty much the same way.
This is heart-wrenching; not only is little changing, those in power are fighting to continue our crimes against humanity. Apparently, if you’re in politics long enough and deep enough you no longer see the real world but devote all to The Game. Pain and hunger, waste and high crimes are not a concerns or responsibilities of yours but are mere concepts, and sometimes are actual weapons, in your quest for ever more power and privilege.
herbert r chersonsky wrote:
We already know that more than 50% of the prisoners at Guantanamo were sent there by Afghan Warlords an Afghans who were bribed to turn in their enemies as: al-Qaeda, Taliban, Militants, or Insurgents….There was no evidence of any wrongdoing sent with these prisoners….The task of the CIA and DOD was to extract confessions through torture.
The CIA destroyed over 200 hours of torture videos because they showed how confessions were extracted….Instead of punishing the CIA for destruction of evidence, obstruction of justice, Congress validated the exercise and revalidated the lies of 9/11.
Democracy is gone! The Empire has been revalidated and The American People are the victims of the greatest “Con” in American History.
Obama has been like a bureaucrat with a large disorderly file of papers on his desk. And every time somebody enters into the office with a complaint, he perplexedly starts shuffling the papers up, telling the supplicant to wait until he can sort out what sort of mess the previous bureaucrat had left him.
‘I’m going to fix things! I’m going to fix things!’ he shouts. ‘I’m going to get rid of the trash this Dubya guy left behind!’
Then when you reenter the office after a suitable time frame of waiting and waiting, you find an even bigger mixed up mess of paper clutter everywhere. And there he is again looking all fluttered, but yet determinedly he states that he’s going to get rid of this clutter for once and all!
And then you return once again after waiting and waiting and waiting….. and?
WELL?, you know the end of the story by now…
IT’S ELECTION TIME ONCE AGAIN! whooppee
And a few comments from the Huffington Post:
He would have closed Gitmo, but Congress wouldn’t let him. He would have fought for single-payer, but the pharmaceutical and insurance industries were against it; He wanted financial reform, but only the parts that he could get past the banksters, to whom he still goes for campaign cash. He would have got right on this oil spill too, but BP told him nobody else could the job, then didn’t.
President Obama might have been a great president, had only Congress not interfered with his plans, which were never set in stone. Turns out therein that glorious edifice was a resistant strain to Obama-mania. And he might have steadfastly stood up for essential principles of governance and law, if that stance had only been more popular with the commentariat. And people might have voted for him in droves again, if only they were convinced they had good reason to do so. I blame everybody but the president.
Paula Ann wrote:
let’s follow the money….who is making a buck from guantanamo being kept open? why does halliburton come to mind?
Sherry Lowrance wrote:
As always, an excellent and informative article, Andy. It’s a shame what Congress and the Administration are doing in Guantanamo, and elsewhere (like Bagram, for example). I still find it hard to believe that Americans have turned so far away from our founding values of freedom and the rule of law.
And a few comments from Facebook:
FogBelter Sfo wrote:
They simply can never allow these detainees to freely speak. They can’t afford to allow them their day in court. The Bush Administration obviously captured a number of Afghans that were innocent so he could have a prop to support his Administration’s War on Terror Narrative. The Worst of the Worst. What happens to what’s left of the United States reputation if that comes out? I think that is the Catch 22 President Obama finds himself in. I think that is also the reason we see this fight over public trials for KSM. I believe the government is terrified that it will come out he was once an intelligence asset.
Simply put, all of this, from my perspective, is about covering up the actions of the Bush Administration that, if brought to light, would have terrible ramifications.
Anne Elliott wrote:
Well Andy, 181 men in Guantanamo will not be forgotten while you are around, and we are listening to you.
I can’t help but think that President Obama will keep on fighting to do as much of what he promised as he can. But he is only human.
Lisa Barr wrote:
Andy, I agree. I never wanted xenophobic farmers getting marquis de sade prison gigs down the road from me.
Darold Killmer wrote:
I just got back from visiting my clients at Guantanamo. The sense of despair among the detainees, especially those from Yemen, is profound. Blind loyalty to President Obama on this issue is unwarranted.
And these were my replies to the above:
Thanks for the comments, everyone.
Anne, I particularly appreciate the supportive words.
Fogbelter, you are undoubtedly onto something there — sadly, I concede, as chronic embarrassment (let alone evidence of colossal human rights violations) is indeed a spur to put off for as long as possible what should be done today.
Lisa, I love the riff about xenophobic farmers and their Marquis de Sade kicks!
And Darold, that’s terrible news from inside Guantanamo, but not surprising. I don’t know what we can do to give these men hope.
[…] Monday, in an article entitled, “House Kills Plan to Close Guantánamo,” I described my despair at the House Armed Services Committee’s unanimous refusal to provide […]
[…] plan, to give up on indefinite detention, and to rediscover its lost principles. (Andy Worthington) Full article. Read […]
rolling in dough. Nice storytelling.
Campaigning investigative journalist and commentator, author, filmmaker, photographer, singer-songwriter and Guantánamo expert
Email Andy Worthington
Please support Andy Worthington, independent journalist: