With Indefinite Detention and Transfer Bans, Obama and the Senate Plumb New Depths on Guantánamo

28.12.10

With just two weeks to go before the ninth anniversary of the opening of the “War on Terror” prison at Guantánamo, almost everyone in a position of authority in the US has failed to resolve, in a satisfactory manner, the bitter legacy left by the Bush administration. In fact, to judge by two recent developments, anything resembling progress on Guantánamo is now at its lowest ebb since June 27, 2004, the day before the Supreme Court granted the prisoners habeas corpus rights, shattering the secrecy required to sustain Guantánamo as a prison beyond the law, where coercive interrogations, torture and human experimentation could all take place.

If you think that sounds like something of an exaggeration, consider that the Senate has just passed legislation aimed at making sure that every prisoner currently at Guantánamo will remain there for the next year, and will neither be put on trial nor released, even though President Obama’s Guantánamo Review Task Force, consisting of “more than 60 career professionals, including intelligence analysts, law enforcement agents, and attorneys, drawn from the Department of Justice, Department of Defense, Department of State, Department of Homeland Security, Central Intelligence Agency, Federal Bureau of Investigation, and other agencies within the intelligence community,” concluded last year that 33 of the remaining prisoners should be put on trial, and that 90 others should be released.

In their desire to impinge on the President’s authority, however, lawmakers inserted three politically motivated provisions into the annual defense authorization bill, which was passed by the Senate and the House of Representatives last Wednesday, and whose baleful effects will last for the next 12 months.

The first bans the use of any funds to bring any Guantánamo prisoners to the US mainland — even to face trials. This goes further than laws passed in 2009, when Congress specifically prevented the transfer of prisoners for any reason except to face a trial, and its political motivation can be seen from the wording of a bill passed by the House earlier this month — a  $1.1 trillion appropriations bill — in which it was stated, “None of the funds made available in this or any prior Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions Khalid Sheikh Mohammed or any other detainee who (1) is not a United States citizen or a member of the Armed Forces of the United States; and (2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.”

That particular reference to Khalid Sheikh Mohammed was very deliberate, as the manifestation of a desire on the part of a significant number of lawmakers to prevent any prisoner from being brought to the US mainland to face a trial was motivated by opposition to the plans, announced last November by Attorney General Eric Holder, to bring Mohammed, the alleged mastermind of the 9/11 attacks, and four alleged co-conspirators to New York to face a trial.

This decision has inflamed liberals, of course, but it has also brought forth trenchant criticism from Republicans as well. In an op-ed in the Wall Street Journal, for example, David B. Rivkin Jr. and Lee A. Casey, lawyers who served in the Justice Department under Ronald Reagan and George H.W. Bush, correctly identified the provision as unconstitutional.

Rivkin and Casey began unpromisingly, by stating, “Trying captured al-Qaeda, Taliban, or allied terrorists in United States civilian courts is a bad idea,” and then claimed that the “near-acquittal” of Ahmed Khalfan Ghailani, a former Guantánamo prisoner and CIA “ghost prisoner,” who was convicted in a federal court in New York last month for his involvement in the 1998 African embassy bombings, but only on one of the 285 charges he faced, “proves as much.” At this point, however, their analysis became much more interesting.

“But one bad idea does not excuse another,” they wrote, adding, “Congressional efforts to block future trials by imposing spending restrictions on the president are unconstitutional and should be abandoned.”

They also wrote:

The language forbids the use of government funds to transfer detainees now held at Guantánamo Bay to the United States for any and all purposes. Since federal courts sit only in US territory and because criminal defendants must generally be physically within the court’s jurisdiction for trial, the apparent purpose of this provision is to prevent President Obama from trying these detainees in federal court.

This is a step too far. The president is the chief federal law enforcement officer and prosecutor. Whether, when and where to bring a particular prosecution lies at the very core of his constitutional power. Conditioning federal appropriations so as to force the president to exercise his prosecutorial discretion in accordance with Congress’s wishes rather than his own violates the Constitution’s separation of powers.

This is powerful criticism, and it applies equally to the two other provisons inserted into the bill by Congress.

The first of these bans the use of funds to purchase or construct any facility on the US mainland for housing prisoners currently held at Guantánamo — and is, again, a direct response to the administration’s announcement, last December, that it intended to buy the empty Thomson Correctional Center in Illinois for that very purpose.

The second prevents the President from releasing any prisoner “unless Defense Secretary Robert M. Gates signs off on the safety of doing so,” as the New York Times described it. In earlier reports, it was noted that this provision was designed specifically to prevent the release of any prisoner to countries regarded by lawmakers as dangerous, including Afghanistan, Pakistan and Yemen. Again, this is an unwarranted and unconstitutional assault on the President’s powers, although in this case it only reinforces what is already in existence.

In July, when a cleared Afghan prisoner was released in Spain, I was obliged to conclude that this had only happened because of Congressional opposition to releasing him in his home country, although this has never been mentioned in any media reports, and it is the first time I have seen fit to mention it. On Yemen, however, President Obama is already onside, and one of the major stumbling blocks to closing the prison is his decision, last January, to announce an open-ended moratorium on releasing any Yemeni prisoners — following hysteria about the fact that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, has been recruited in Yemen — even though this, like the newly announced Congressional ban, amounts to guilt by nationality, and even though 58 of the 90 prisoners cleared for release by the Task Force are Yemenis.

The only point at which Congress appears to have stepped back from unconstitutional activities regarding Guantánamo concerns attempts to ban the release of prisoners whose release has been ordered by District Court judges who have granted their habeas corpus petitions. Last year, lawmakers passed a provision allowing them 15 days to review the cases of any prisoners that President Obama wanted to release, and last July, they aroused the wrath of Lt. Col. David Frakt, the military defense attorney for Mohamed Jawad, an Afghan who had just won his habeas petition, when they insisted on reviewing his case before his release. As Lt. Col. Frakt explained:

I consider this Congressional notification requirement to be blatantly unconstitutional as a violation of the separation of powers. In Jawad’s case, it meant that after the Executive Branch and the Judiciary had concluded there was no lawful basis for the military to detain Mohamed Jawad (after the Department of Justice ultimately conceded the habeas corpus petition), the military was required to continue to detain him at Guantánamo at the order of the legislature, Congress. As I explained in Federal District Court, this placed Jawad in the status of “Congressional prisoner,” a status for which there is no Constitutional authority.

He also explained:

It may be that, if the US is contemplating releasing a detainee that it has the lawful basis to detain under the laws of war, that Congress can legitimately condition the expenditure of US funds to effectuate the release on the provision of this notification to Congress, but for those detainees determined to be unlawfully held, this law simply arbitrarily extends their unlawful stay at Guantánamo. This provision, coupled with the refusal to authorize funds for detainees to be resettled in the United States — even those determined to be innocent of any wrongdoing who should qualify for political asylum — shows the extent of Congressional depravity on any issues related to detainees.

Lawmakers have, presumably, taken Lt. Col. Frakt’s criticism on board, but unfortunately, when it comes to freeing prisoners whose release was ordered by judges after they won their habeas petitions, a further problem is the Obama administration itself.

Although judges in the District Court in Washington D.C. have ruled on 57 habeas corpus petitions since the Supreme Court confirmed, in June 2008, that the prisoners had constitutionally guaranteed habeas rights, and have found in the prisoners’ favor in 38 of those cases, the administration has pushed back, appealing several successful petitions, and endorsing a broader definition of the standard required for ongoing detention, which has found support in the far more conservative D.C. Circuit Court.

This, combined with the evident unwillingness of either President Obama or Attorney General Eric Holder to provide any guidance to the Justice Department lawyers working on the Guantánamo cases — by, for example, conducting any kind of review of cases that should not be challenged in court — is worrying enough, but what is also apparent is that the Obama administration has, from the beginning, regarded the objectivity of the District Court judges as less important than the decisions made by the Guantánamo Review Task Force, which operated in secret, and, essentially, sidelined the courts.

Although this might have been excusable if the Task Force had contented itself with approving prisoners only for release or trial, the final report also contained a recommendation that 48 of the remaining 174 prisoners should continue to be held indefinitely without charge or trial, because “prosecution is not feasible in either federal court or a military commission.”

The Task Force attempted to explain that “the principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainees was tainted,” but its explanations were unconvincing. Behind claims that “the intelligence about them may be accurate and reliable,” even though it was gathered in dubious circumstances, and that, in many cases, “there are no witnesses who are available to testify in any proceedings against them,” lies a blunter truth, as I explained at the time: “that the intelligence, and whatever witness availability there might be, are both tainted by the circumstances under which ‘the gathering of intelligence’ took place — the coercive interrogations, and in some cases the torture, of the prisoners themselves, or of their fellow prisoners.”

To demonstrate this, I returned to the habeas petitions examined by judges in the District Court in Washington D.C., noting:

[T]hese problems have been highlighted again and again by judges, with an objectivity that eluded the Task Force — as, for example, in the cases of Fouad al-Rabiah, a Kuwaiti put forward by President Bush for a trial by military commission, who was freed after a judge ruled that the entire case against him rested on a false narrative that he had come up with after torture and threats, and, to cite just two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan, and Mohammed El-Gharani, a Chadian national, who was just 14 when he was seized in a raid on a mosque in Pakistan. In both cases, they were freed after judges ruled that the government’s witnesses — the men’s fellow prisoners — were irredeemably unreliable, and were, if not subjected to violence, then bribed to produce false statements.

It is, therefore, rather disingenuous of the Task Force to claim that “the principal obstacle to prosecution” for these 48 men “typically did not come from … concerns that the evidence against the detainee[s] was tainted,” when, to be frank, the record is replete with examples proving the opposite.

Nevertheless, President Obama chose to accept the Task Force’s conclusions, and, last week, added to the unconstitutional position taken by Congress regarding cleared prisoners and prisoners recommended for trials, when officials told the Washington Post that they were close to finalizing an executive order that “would formalize indefinite detention without trial for some detainees at the US military prison at Guantánamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration.”

Given the realities of the situation, a review process which “would allow detainees to challenge their incarceration periodically, possibly every year,” and to have legal representation, is better than indefinite detention without any review at all, and it is also possible to sympathize with the official who told the Post, “When the review panel puts someone in the category of long-term detention, the 48 people, what happens then? Are they there for the rest of their lives? What’s the review mechanism? How impartial is it? Do they have a chance to contest it? All of that stuff has to be answered. And we have been working on an executive order laying out these elements.”

Even so, looked at as part of the bigger picture, the proposal for the executive order is nothing to celebrate, and is actually only the lesser of two evils, because indefinite detention without charge or trial should never have been contemplated in the first place. Tom Malinowski, the head of the Washington office of Human Rights Watch, was right to tell the Post that there is “a ‘big difference’ between using an executive order, which can be rescinded, to handle a select group of detainees that Obama inherited, and legislating a general indefinite detention scheme,” but it is unacceptable that the administration has so thoroughly sidelined the judges of the District Court in Washington D.C., who have been making their own decisions about whether prisoners should be held or released. Moreover, it is even more disappointing that the news of this imminent executive order — throwing the fate of 48 of the remaining prisoners on the mercy of an unspecified review process — came in the same week that 123 of the other 126 prisoners (all but the three held after trials by Military Commission) were told by Congress that their chances of being tried or released had pretty much evaporated.

As the ninth anniversary of the opening of Guantánamo approaches — and the first anniversary of Obama’s failed deadline for closing the prison — it is sobering indeed to realize that, far from closing Guantánamo and removing this lingering stain on America’s reputation, President Obama is now fulfilling one of Dick Cheney’s great hopes, presiding over a prison in which the overwhelming majority of the remaining 174 prisoners will, in all likelihood, continue to be held indefinitely.

It promises to be a bleak New Year.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. 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 July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as “Plumbing New Depths on Guantanamo.” Cross-posted on The Public Record, The World Can’t Wait, Campaign for LibertyUruknet and United Progressives.

44 Responses

  1. Tweets that mention With Indefinite Detention and Transfer Bans, Obama and the Senate Plumb New Depths on Guantanamo - Detailed analysis: -- Topsy.com says...

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  2. Andy Worthington says...

    On Facebook, Ruth Gilburt wrote:

    woeful

  3. Andy Worthington says...

    Tashi Farmilo-Marouf Artist wrote:

    I really hate to think of the suffering of these prisoners being held indefinitely with no hope and no light at the end of the tunnel.
    What do you think they should do with the prisoners? What would be the best solution to this awful problem?

  4. Andy Worthington says...

    Tashi, my position remains clear, although you’ll see how implausible it is that any of these demands will come to pass, given the current state of US politics:

    - abandon the Military Commissions, and push for federal court trials for the 33 men scheduled to face trials (as recommended by the Guantanamo Review Task Force)
    - release the 58 Yemenis cleared for release (or “approved for transfer,” as described by the Task Force)
    - find homes for the other 32 men cleared for release, including, if necessary, in the US
    - promptly release prisoners who win their habeas corpus petitions in the District Court in Washington D.C., and stop challenging successful petitions in the D.C. Circuit Court
    - get the Justice Department to cross-reference the ongoing habeas petitions with the findings of the Task Force to speed up the court hearings, and to stop challenging the habeas petitions of prisoners already “approved for transfer” by the Task Force
    - repeal the Authorization for Use of Military Force, and reclassify soldiers who have lost their habeas petitions as prisoners of war (and then let litigation commence regarding the length of the “war on terror”)

    More realistically, we need to push for the release of the 58 Yemenis and the 32 other cleared prisoners still held, and to push for the administration to be able to try the 33 prisoners it has stated that it wants to try. We should, however, not accept indefinite detention without charge or trial. Mostly, these 48 men are either being prejudged before the District Court has ruled on their habeas petitions, or are soldiers who have lost their petitions. Only a handful are terrorism suspects whose prosecution will be difficult. Let’s clear out the rest, and deal with this when the prison’s population is no more than 50 or so.

  5. Andy Worthington says...

    Newsom Cheryl wrote:

    There has to be something more to this. President Obama was adamant about closing Guantanamo and I don’t believe he’d be dragging it out without good reason, wrong as it may seem to us.
    Want to know more.

  6. Andy Worthington says...

    Hi Cheryl,
    President Obama has largely had his hands tied by Congress, but he could do more if he wished (see 4, above). The biggest problem is that he has not trusted the District Courts to do their job when it comes to the prisoners’ habeas petitions, has not insisted that those who win their habeas petitions be freed, has not pushed sufficiently to free the 90 prisoners “approved for transfer” by his own Task Force, and has not treated some of the Task Force’s findings with sufficient skepticism — hence the widespread belief that, in addition to the 33 prisoners recommended for trials, there are a further 48 dangerous prisoners who should continue to be held even though there is insufficient evidence to try them. I simply don’t believe, from my research, that there are 48 men who fit this category.

  7. Andy Worthington says...

    Mui J. Steph wrote:

    It occurs to me that now is a very good time to push hard with Gitmo, since Manning’s imprisonment on the blogosphere radar. Don’t know whether that sounds too pessimistic or optimistic.

  8. Andy Worthington says...

    Hi Mui,
    I think this is a good time to press Obama on Guantanamo, particularly because 90 of the remaining 174 prisoners were “approved for transfer” by his own Task Force. The moratorium on releasing any Yemenis at all, which he issued last January, remains unacceptable, and is not made any more acceptable by the fact that Congress has now issued its own version of the prohibition. Release them and get it over with!
    That’s the most pressing issue. The 33 put forward for trials (which have now ground to a halt) and the 48 recommended for indefinite detention without charge or trial involve more subtle arguments (as I touched on in 4 and 6, above), which also need addressing, but the first thing would definitely be to point out that the administration itself first proposed that over half of the men still held should be released — however much they have conveniently stepped back from it.
    Where do we ever see it mentioned in the mainstream media that the government only wants to keep holding 84 of the remaining 174 prisoners?

  9. Andy Worthington says...

    Newsom Cheryl wrote:

    I think the President and AG Holder both tried to convince people of the trustworthiness of the district courts and it didn’t go over. Maybe it’s more the public that needs to be pressed to get their moral priorities straight.

  10. Andy Worthington says...

    Mui J. Steph wrote:

    Yes, because DC court is so goshdarn librul/s

  11. Andy Worthington says...

    I wish it were that simple, Cheryl, but the problem is that Obama set up a Task Force to do what the District Court was already doing (with the mandate of the Supreme Court), and has deferred ever since to what the Task Force recommended, and Holder never once stepped in to ask why the career officials in the DoJ (the same career officials working on the habeas cases under Bush) were challenging every single habeas petition — even ones like this, which was ridiculed out of court by Judge Leon, a George W. Bush appointee:
    http://www.andyworthington.co.uk/2009/06/24/why-did-it-take-so-long-to-order-the-release-from-guantanamo-of-an-al-qaeda-torture-victim/

  12. Andy Worthington says...

    Having said that, Cheryl, we could certainly do with a more robust mainstream media that would help to educate the public …

  13. Andy Worthington says...

    Mui J. Steph wrote:

    We should quit calling Gitmo prisoners, prisoners. They are hostages.

  14. Andy Worthington says...

    Hi Mui,
    99 percent of the time over the last five years I have called them prisoners rather than detainees (that came from Clive Stafford Smith).
    I like hostages, but I’m actually thinking of starting to use “political prisoners,” as that’s certainly what all the cleared prisoners are.

  15. Andy Worthington says...

    Jamal Rabee Abu Nahel wrote:

    Prisons do not bring peace and security

  16. Andy Worthington says...

    Tashi Farmilo-Marouf Artist wrote:

    Thanks for the response to my question, that took time and effort, and I appreciate your thoughtful answer.

    Is there anything we the ‘little people’ can do?

  17. Andy Worthington says...

    Hi Tashi,
    As one of the “little people” myself, I just try to get the word out. I know that the District Court judges pay attention to the bloggers, and I’m pretty sure that some administration officials notice what we say as well, but lawmakers appear to be a law unto themselves for the most part (no pun intended).
    I wish I had some sort of simple answer about how to engage more people, but I don’t. It’s like torture — the right-wing media has captivated many millions of people, and many millions of other people simply don’t want to have the time to regard it as something important, even though a minority (often, thankfully, a vocal minority) know that challenging and repudiating the lies told abut the necessity and the efficacy of torture is crushingly important for the soul of America.
    Sometimes I wish the whole opposition to America’s post-9/11 detention and interrogation program had been tied more closely to the anti-war movement, as they’re obviously so closely related, but then again, it’s difficult for the anti-war movement to engage the American public in large numbers as well.
    We just have to do our best to spread the word, and to keep hammering away at it all. No one should ever have thought that fundamental change of the sort that is now required — essentially, the demilitarization of American thought, combined with an acceptance that exceptionalism is a smokescreen for something only exceptional in its brutality — would take place quickly. We have to be committed for the long haul. For what it’s worth, I intend to stick with it!

  18. Andy Worthington says...

    Tashi Farmilo-Marouf Artist wrote:

    It is obviously a complex situation.
    But I am so thankful that there are people like you in the world, who obviously care and are proactive in positive, peaceful ways.

  19. Andy Worthington says...

    Newsom Cheryl wrote:

    Well, if we really want to talk about prisons the unfairness and injustice in our own penal system against our own citizens is abominable and a disgrace, I guess 2 wrongs may not make a right, but my priorities would lie in correcting those wrongs, but guess that’s changing the subject and certainly doesn’t raise the ire that Gitmo does.

  20. Andy Worthington says...

    Hi Cheryl,
    I entirely agree. If I had the time to focus on the domestic US prison system, then I would. I live in a country (the UK) that imprisons more people per capita than anywhere else in Europe, which is a source of shame to me, but Britain’s zeal for imprisonment pales in comparison to that of the US. In the UK, with a population of 60m, we imprison 95,000 people, whereas the US, with a population of 300 million, imprisons 2.4 million people (in other words, five times as many as the UK per capita).
    The US also, of course, retains the death penalty, and delights in imprisoning other people, post-charge and post-trial, in the kind of horrendous solitary confinement that we’ve seen implemented in the “War on Terror” on foreign prisoners held without charge or trial.
    I’m happy to promote others who campaign against all of this, but I simply don’t have the time myself, although I did recently sign up to this initiative opposing solitary confinement wherever it is practised:
    http://www.andyworthington.co.uk/2010/12/10/on-human-rights-day-public-figures-call-for-worldwide-ban-on-solitary-confinement-and-prisoner-isolation/

  21. Carlyle Moulton says...

    Andy.

    To understand the behaviour of the Americans re Guantanamo and indefinite detention you have to understand that most Americans consider all Muslims and all Arabs collectively guilty for the September 11 2001 kamikaze airliners and therefore suitable targets for revenge. The only way a Muslim or Arab can shed this guilt is to convert to fundamentalist Christianity and become a terrorism expert advising US police forces on the need to assassinate Muslim children before they grow up and become suicide bombers.

    The US is revenge deprived and if they tortured to death every Muslim in the world it would not satisfy their post 9/11 vengeance needs. Therefore any evidence no matter how tainted is sufficient to render any random Muslim a suitable candidate for extrajudicial punishment by indefinite detention.

    In any case after they have been held enough years these indefinite detainees may be persuaded to plead to something to have a hope of release in a few decades. The US will never need to admit that it did anything wrong.

  22. Andy Worthington says...

    Bleak but appropriate, Carlyle. I have always been troubled by the extent to which vengeance distorted America’s aims in the wake of the 9/11 attacks.
    The only point at which your argument falls down concerns the “confessions” of those held indefinitely. As has been demonstrated in the cases of around a dozen of the men who lost their habeas petitions, and who are now in the category of prisoners eligible to be held indefinitely, they did not lose their petitions because of any involvement in terrorism; rather, they were foot soldiers, who received military training at camps that had a connection to al-Qaeda/Osama bin Laden (like tens of thousands of others in the 1990s and up until 9/11) — or, in two cases, a cook and a medic for forces supporting the Taliban,
    As a result, their ongoing detention in a prison forever associated with terrorism is only justifiable on the basis that there is no distinction between al-Qaeda and the Taliban — or, as i have put it elsewhere, no distinction between, on the one hand, the part of al-Qaeda dedicated to international terrorism, and, on the other, the Taliban, supported by what we might call the military wing of al-Qaeda, which, before 9/11, was focused solely on the conflict in Afghanistan between the Taliban and the Northern Alliance.
    As with everything else to do with Guantanamo, recognizing this requires the exercise of some kind of logic, and is fiercely resisted by those in positions of power, but I think it makes sense, and will be pushing it as an argument throughout 2011.

  23. George Cammarota says...

    Hi Andy,

    If I understand correctly, the new legislation forbids the use of federal funds to bring Guantanamo prisoners to the mainland for trial. What about the use of private funds? What if an action network were established specifically for the purpose of accepting pledges from private donors to support federal court trials? There would be many questions to answer, not least of which is, what kind of fair trial could be expected given that the defendants’ due process rights have been violated since the day they were captured and imprisoned, torture being tantamount among the violations? But such an action, providing sufficient pledges were received, would be a grassroots challenge to legislative control, and at the very least force the government’s hand to take the next step, be that what it may.

  24. Andy Worthington says...

    Hi George,
    Thanks for the questions/proposals. It’s a very interesting idea about raising private funds, and I’ll discuss it with colleagues on my visit to the States next week. As for the quality of federal court trials, given what has happened to these men, that’s a difficult question, of course, but I’ve always felt that it ought to be possible using untainted evidence, and if not, then those held should be freed. And separately, I also believe that those who ordered the men’s denial of due process, and their torture, should be held accountable.
    In the first instance, though, I think we’ll never have the chance to move beyond Guantanamo and the “War on Terror” without federal court trials for those genuinely regarded as having been involved in major terrorist attacks, as Eric Holder clearly intended when he announced federal court trials for Khalid Sheikh Mohammed and four others last November.

  25. HV says...

    Time permitting, can you comment on this article comparing Bush & Obama? http://www.tnr.com/print/article/magazine/politics/79752/breaking-away-obama-bush-aclu-guantanamo-war-on-terror

  26. Jeffrey Kaye says...

    Great post, Andy.

    You wrote: “Last year, lawmakers passed a provision allowing them 15 days to review the cases of any prisoners that President Obama wanted to release…”

    I’d note that this means Congress essentially signed off (didn’t protest) when Algerian prisoner Abdul Aziz Naji was deported to Algeria, despite threats that he might be tortured or face persecution there, directly violating treaty obligations regarding the non-refoulement of prisoners.

    I wrote this up in an article last August, “Congress OK’ed Naji Deportation, Ex-Gitmo Prisoner Charges Drugging, Torture, Coercion to Spy” (http://my.firedoglake.com/valtin/2010/08/04/congress-oked-naji-deportation-ex-gitmo-prisoner-charges-drugging-torture-coercion-to-spy/).

    Meanwhile, two other Algerian detainees, Farhi Saeed bin Mohammed and Ahmed Belbacha, have been fighting repatriation to Algeria, and thus far (unless I missed something) are still at Guantanamo. These prisoners are more at the mercy of the D.C. Circuit Court than Congress, at this point, as a column at ScotusBlog explained last summer. I’m not sure what is staying the Obama administration from following the example of Naji, at least in Mohammed’s case. I’d like to believe it was the Congressional review, but nothing thus far leads me to accept that. There easily could be other, political considerations. (Unless, Andy, you’ve heard more…)

  27. Andy Worthington says...

    Thanks, Jeff, and a Happy New Year to you and your family!
    My understanding of the plight faced by Farhi Saeed bin Mohammed and Ahmed Belbacha is that the administration itself has got cold feet, despite there being no legal obstacle to their repatriation, and that Congress has not yet had the opportunity to exercise its dubious claim that lawmakers have a right to review decisions made by the Executive branch. When Naji was transferred, officials were already expressing doubts about repatriating Ahmed Belbacha, and I guess that they feared international criticism when it came to Farhi Saeed bin Mohammed as well.
    It’s also worth noting that three other cleared Algerians are in the same position: Motai Saib, Djamel Ameziane and Nabil Hadjarab.
    I wrote about this here:
    http://www.andyworthington.co.uk/2010/07/29/guantanamo-algerian-returns-home-will-obama-suspend-further-transfers/

  28. Jeffrey Kaye says...

    Thanks, Andy, and sorry I missed my opportunity to wish you a Happy New Year!

    And thanks for the nod to your article last July on the three other cleared Algerians.

  29. Andy Worthington says...

    No worries, Jeff. I felt a little flippant when you were so clearly a man on a mission! Rather as if I was checking for the last chocolate in the box and only half paying attention when you were telling me something important …
    Only kidding. I really do wish you the best for the coming year, you know. How you juggle a full-time job with your investigative work continues to amaze me!

  30. Andy Worthington Discusses Guantánamo and WikiLeaks with Rob Kall of Op-Ed News « Dandelion Salad says...

    [...] Commissions. I also explained how the Task Force had recommended that 48 prisoners should be held indefinitely without charge or trial — even though such a notion ought to be an abomination to any American who believes in the rule [...]

  31. As Activists Plan Protest for 9th Anniv. of Guantánamo, Former Gitmo Commander Subpoenaed in Spain over Prisoner Torture + Ending Bush’s big lie on Guantánamo « Dandelion Salad says...

    [...] or trial, noting how this designation — and the recent suggestion that President Obama will sign an executive order formalizing their indefinite detention, while providing for some sort of review process — is also [...]

  32. Andy Worthington says...

    Portuguese translation here, courtesy of my friend Murilo, who has been translating my articles for several years now, sending them out to an email list, but has just set up a website, “Translations”:
    http://zqxjkv0.blogspot.com/2011/01/fff-commentaries-plumbing-new-depths-on.html

    The translation begins:

    Apenas duas semanas antes do nono aniversário da inauguração da prisão da “guerra contra o terror” em Guantánamo, quase todo mundo em posição de autoridade nos Estados Unidos fracassou em resolver, de maneira satisfatória, o amargo legado deixado pela administração Bush. Na verdade, a julgar por dois desdobramentos recentes, qualquer coisa parecida com progresso acerca de Guantánamo situa-se hoje no nível mais baixo desde 28 de junho de 2004, o dia anterior àquele no qual o Supremo Tribunal reconheceu direitos de habeas corpus para prisioneiros de Guantánamo, desarticulando o segredo indispensável para manter Guantánamo como prisão acima da lei, onde interrogatórios coercitivos, tortura e experimentação humana podiam todos ter lugar.

  33. Bringing Guantánamo to Poland — and Talking About the Secret CIA Torture Prison « Eurasia Review says...

    [...] up talking about the tour, about Shaker Aamer, about anti-terror legislation in the UK, and about the plight of the Yemenis in Guantánamo (and I then retired to the bathroom to write Guantánamo: A Tale of Two Tunisians, letting Moazzam [...]

  34. Another Desperate Letter from Guantánamo by Adnan Latif: “With All My Pains, I Say Goodbye to You” « Eurasia Review says...

    [...] options for any of these men leaving anytime soon have been so severely diminished not only through the actions of Congress, but also through the actions of the judiciary (specifically, the D.C. Circuit Court) and through [...]

  35. After Recent Ruling in the Case of Bin Laden’s Cook, Guantánamo Should Close by July 2012 « Eurasia Review says...

    [...] of Terror list, and “Congressional limits on Guantánamo detainee transfers [introduced in a military spending bill before Christmas] forbid the Obama administration from sending even cleared captives to states on [...]

  36. Tunisia Revolution Rolls On With Abolition Of Secret Police « Eurasia Review says...

    [...] all, America likes dealing with dictators, but also, presumably, because lawmakers in Congress have insisted that they have the right to interfere in decisions regarding the disposition of prisoners, and many of them, if pushed, [...]

  37. How The US Supreme Court Gave Up On Guantánamo – OpEd « Eurasia Review says...

    [...] Sheikh Mohammed and four others in federal court, capitulating to Republican pressure — and a ban on moving prisoners to the US mainland to face trials, which was unconstitutionally implemented by Congress in December [...]

  38. How To Read WikiLeaks’ Guantánamo Files – OpEd « « Eurasia Review Eurasia Review says...

    [...] the prison had ended ignominiously, and that the prison’s supporters in the US (particularly in Congress and the judiciary) had won a resounding victory, closing off every avenue that might have led to [...]

  39. The Only Way Out Of Guantánamo Is In A Coffin - OpEd says...

    [...] Although the President is not entirely to blame for his failure to close the prison, as he has been confronted by unprincipled Republican opposition on a colossal scale, and also by cowardice in his own party, it ought to be unacceptable that his [...]

  40. John Walker Lindh, Torture Victim And 9/11 Scapegoat, Profiled By Father - OpEd says...

    [...] of the men in Guantánamo, who did nothing more than Lindh — the 58 Yemenis still held because of Congressional scaremongering and Obama’s cowardice, the 31 men held because they cannot return home safely, and because [...]

  41. Tunisians Call For Release Of Prisoners In Guantánamo - OpEd says...

    [...] be hoped that President Obama will rise to the opportunity presented by the Tunisian government, to overcome the inevitable barriers raised by Republican lawmakers, who have cynically decided to oppose the release of prisoners from [...]

  42. The Progressive Mind » Trial at Guantánamo: What Shall We Do With The Torture Victim? :: www.uruknet.info :: informazione dal medio oriente :: information from middle east :: [gd] says...

    [...] US mainland to face a federal court trial? Ghailani was transferred in May 2009 (before Congress imposed a ban on the transfer of any more prisoners for trials on the US mainland), and was tried last fall, [...]

  43. Deranged Senate Votes for Military Detention of All Terror Suspects and a Permanent Guantánamo by Andy Worthington « Dandelion Salad says...

    [...] noted above, Section 1034 (which repeats previous bans imposed by lawmakers) is entitled, “Prohibition on use of funds to construct or modify facilities in the United States [...]

  44. about our brother adnan , read this article where he is asking us ““Who Is Going to Rescue Me From the Injustice and the Torture I Am Enduring?” says...

    [...] to this day. In addition, this unacceptable position was reinforced in December, when Congressinserted a provision into a defense spending bill that was aimed specifically at preventing the release of prisoners to [...]

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Andy Worthington

Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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