Jail Without Trial Forever: Andy Worthington Discusses Obama’s Backsliding on Guantánamo on Antiwar Radio

15.3.11

Last week, for our 24th Antiwar Radio interview (19 minutes, available here), the tireless Scott Horton and I discussed the latest bleak news from Guantánamo, which sets the seal on Barack Obama as the man who not only failed to close Guantánamo, but, in many crucial respects, deliberately continued the policies of the Bush administration, which he had been opposed to as a Senator.

This is how Scott described the show:

Andy Worthington, author of The Guantánamo Files, discusses the quarterly fund drive that helps keep his website going; Obama’s decision to resume Military Commissions for Guantánamo prisoners; how plea bargains allow the government to avoid embarrassing issues of prisoner torture and bogus “war crimes” charges, yet may be the only way Guantánamo will ever be emptied; and Obama’s executive order that essentially recreates Bush’s Combatant Status Review Tribunals, which the Supreme Court found inadequate.

During our interview, in which, as Scott noted, he also mentioned my quarterly fundraising appeal, I explained the full story of Obama’s recent announcement regarding Guantánamo, which set the seal on his “ownership” of the prison, rather than just as someting he inherited from George W. Bush that is a legacy problem.

I discussed this in depth in my recent article, Guantánamo: Obama Turns the Clock Back to the Days of Bush’s Kangaroo Courts and Worthless Tribunals, but it was great to run through it with Scott, and to add some extra incredulity to the proceedings. Obama is not to blame for Congress’s refusal to allow him to pursue federal court trials for any of the prisoners still held, but it is his fault that the Military Commissions — a second-tier system of justice, complete with bogus war crimes — were revived, and it is not fundamentally reassuring that, in recognizing the Commissions’ weaknesses, the administration has shown itself unwilling to proceed with actual trials, and is settling instead for plea deals.

Whether this will change — as, for example, in the case of Abd al-Rahim al-Nashiri, the alleged mastermind of the bombing of the USS Cole in 2000 — is unclear, but it seems unlikely that anyone in charge would be recommending that al-Nashiri should be freed after a plea deal, unlike two men convicted in the last year (whose charge sheets were inherited from the Bush administration) — Ibrahim al-Qosi, a sometime al-Qaeda chef, whose sentence expires in July 2012, and Noor Uthman Muhamed, a training camp instructor whose sentence expires in January 2015.

Obama is also to blame for the fact that — if these plea deals are honored, and the men are not immediately thrown back into the general population at Guantánamo (which would surely be a step too far, even for America’s hysterical lawmakers) –they are more fortunate than the 89 other men who may never be released, even though they were cleared for release by Obama’s own interagency Guantánamo Review Task Force, which reviewed all the men’s cases throughout 2009.

58 of these men are Yemenis, and Obama has refused to release any Yemenis since January 2010, apparently agreeing with scaremongering lawmakers and fervent supporters of Guantánamo that, since the failed Christmas Day plane bombing that year, the fact that the would-be bomber was recruited in Yemen makes it acceptable to judge all Yemenis as potential terrorists, and of “guilt by nationality.” A moratorium announced by the President last January is now 14 months old, and there are no signs of when, if ever, it will be lifted.

The other 31 are from countries where they face the risk of torture if returned, and are therefore waiting for third countries to offer them new homes. This is a process that may have run out of steam, and that once more casts Obama in a poor light, as it was the President who vetoed a plan hatched by White House Counsel Greg Craig in the spring of 2009 to bring a handful of these men to live in the US — not only because it was the right thing to do, but also because it would encourage other countries to help out.

Dispiriting though it is to realize that, ten years after Guantánamo opened, men charged with war crimes have more chance of leaving Guantánamo than men charged with nothing and cleared for release, the most unfortunate group of men in Guantánamo — who Scott and I also discussed — may well be the 47 men recommended by the Task Force for indefinite detention without charge or trial, on the basis that they are considered too dangerous to release, but that there is insufficient evidence to put them on trial.

Fundamentally, what this means is that much of the information relied upon by the Task Force was extracted from the prisoners themselves, or from their fellow prisoners, through the use of torture or coercion, and is therefore fundamentally unreliable. Examples of this kind of dubious information have regularly been exposed by judges reviewing the prisoners’ habeas corpus petitions in the District Court in Washington D.C., where it has often been dismissed, contributing to the tally of 38 cases won by the prisoners, compared to 21 won by the government.

In an attempt to deflect criticism, Obama signed an executive order last week guaranteeing that these 47 men would receive periodic reviews of their cases, to ascertain whether they should continue to be held. This sounds reassuring on the face of it, although the format of the hearings is remarkably similar to the Combatant Status Review Tribunals established by President Bush in 2004, to review the prisoners’ cases, which was found to be “inadequate” in 2008, when the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights.

Moreover, references to the prisoners’ habeas petitions serve only to highlight how the establishment of the Guantánamo Review Task Force deliberately sidlelined the habeas court, making pronouncements on the fate of the men held, even though many of them had habeas petitions outstanding, in which the judges may well have reached different conclusions.

This, plus the refusal — even after nine years — to distinguish between prisoners who are terrorist suspects and those who were nothing more than foot soldiers (and should, therefore, have been held all along as prisoners of war), makes the disposition of the 47 men a deeply politicized process, and reveals that, fundamentally, the executive order is about nothing more than attempting to justify the unjustifiable by applying a veneer of accountability to it.

In addressing these issues, I was interested to note that, last week, Rolf Mowatt-Larssen, a senior fellow in the Belfer Center for Science and International Affairs at the Harvard Kennedy School, who, previously, served for 23 years as a CIA intelligence officer, denounced Obama’s plans in a blog post in which he noted:

As a retired CIA officer, I’m not “soft” on terrorism. I’m not advocating that we release dangerous terrorists. I am not saying that US laws should apply to the detainees as for citizens. But even our enemies deserve due process under the law. Even our enemies — especially our enemies — deserve a form of swift and fair justice. If some of these men are released and return to threaten us one day, then so be it; we must not be guided by fear. Terrorists can never achieve their aims through violence if we do not allow them to subvert our values. The far greater threat lies in not defending what this country stands for. Give these men their rights, as we would like for ourselves, as Americans. Then close Guantánamo.

There’s more integrity in that one line — “If some of these men are released and return to threaten us one day, then so be it” — than there has been in the entire debate, both inside and outside the administration, since May 2009, when Obama first flagged up the revival of the Military Commissions, and first announced his intention to hold some men idefinitely without charge or trial.

What it shows is that, by pandering to right-wing pressure on Guantánamo, and by living in fear of making a single “mistake” when it comes to releasing any of the prisoners, President Obama has ended up in a position where he can attempt to justify indefinite detention without charge or trial, rather than redefining soldiers as prisoners of war and holding them until the end of hostilities (which would have the same effect, but would not be a continuation of the Bush administration’s policies), where he fails to release men cleared for release by his own executive review board, and where he settles for a second-rate trial system that he denounced as a Senator.

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, on tour in the UK throughout 2011, and available on DVD here — or here for the US), 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.

27 Responses

  1. Andy Worthington says...

    On Facebook, George Kenneth Berger wrote:

    I’m sharing this now.

  2. Andy Worthington says...

    Ciudadano Kane Kane wrote:

    Thank you, Andy!, shared!

  3. Andy Worthington says...

    Mark Barnes wrote:

    I don’t know if it’s Dugg or Digged, but done. Good article as usual.

  4. Andy Worthington says...

    Leonardo L Larl wrote:

    ‎”….. the 47 men recommended by the Task Force for indefinite detention without charge or trial, on the basis that they are considered too dangerous to release, but that there is insufficient evidence to put them on trial”.
    The criminal paradox of US “democracy”.

  5. Andy Worthington says...

    Doug Tarnopol wrote:

    Quibble– shouldn’t it have been “Jail Forever Without Trial”? :)

  6. Andy Worthington says...

    Allison Lee-Clay wrote:

    didn’t the World really get the message when we read Glenn Greenwald’s story on the AT&T funding of the Denver DNC?
    seriously.
    when Kucinich got so easily shunted out of the campaign, didn’t it really occur to a lot of people that Money has been “investing” in both parties for a long time now?

    I highly recommend the film “Our Brand Is Crisis” about how both US parties picked candidates & ‘professionals’ hired (by whom?) to represent preferred US ‘interests’ in an off-shore election in a resource-rich region
    http://www.OurBrandIsCrisis.net/

    you can rent it on iTunes for $1.99

  7. Andy Worthington says...

    Carol Anne Grayson wrote:

    Good article… its cruel and inhumane to keep people waiting indefinately and can severely compromise a person’s physical and mental health. There have been cases taken on the time limits to get to a court at least in Europe…don’t know about the US but one I read about in the past was for a man accused of rape. The decision was that his human rights had been breached because of the time taken to get to court… This is a point of law that needs examining in many countries both for those trying to take a case and for those waiting to go to court…I also have a friend who still has an active legal case and its been going on 22 years…the defendents would be the Brit govt…say no more!

  8. Andy Worthington says...

    Maria Allison wrote:

    Dugg and shared.

  9. Andy Worthington says...

    Thanks, everyone.
    Doug, I don’t know if, technically, either of those sentence structures is wrong. I just lifted the title from Scott Horton, as I thought it was catchy!
    And Carol, the time limits would only be important if the men were criminal suspects. As prisoners in wartime (but not actual “prisoners of war”), the government can, when it chooses, adopt its fallback position that it has the right to hold them indefinitely — or until the end of hostilities — under the terms of the AUMF.
    Of course, if any of them are ever to face trials, the AUMF will be used to excuse the hideously long delay in getting them to trial, because they’re not straightforward criminal suspects either.
    Everything ends up back with the damned AUMF — that idiotic key to the detention policies in the “War on Terror,” and the reason that, even now, nine years since Guantanamo opened, the men held there are still a unique category of human being, who, although nominally in possession of habeas rights, and protected from torture and cruel and inhumane treatment under Common Article 3 of the Geneva Conventions (which the Supreme Court said applied to them in Hamdan v. Rumsfeld in 2006) still seem to have no rights whatsoever when it suits the US government.

  10. Andy Worthington says...

    Yusuf Mohammed Abdullah wrote:

    Obama is a con! did not take long for the mask to slip,
    Barack ”W” Obama. Saw the programme The secret war on terror last night on the BBC,The way they spoke about people as if they did not matter. Disgusting, they sent people to Morrocco because of language problems??

  11. Andy Worthington says...

    Carol Anne Grayson wrote:

    Thanks for explaining that Andy… what a nightmare!!! So protected under Article 3 but no real rights…

    Has anyone tried to legally challenge AUMF…. I guess someone will have already done so…

    I hear some are approaching Crowley to continue to speak out about conditions of those detained as he has already spoken out about Bradley…though obviously no longer in post… US govt are undermining their own constitutional principles of basic human rights….such hypocrisy! Human rights to both the US and UK is selective… and human rights must never be selective…defeats the whole purpose… its meant equally for all!

    Just saw this little piece…

    http://www.allthatsleft.co.uk/2011/03/it-should-have-been-gates-not-crowley/

  12. Andy Worthington says...

    Carol Anne Grayson ‎wrote:

    Yusuf… I saw same and Musharraf’s comments …
    http://www.guardian.co.uk/commentisfree/libertycentral/2011/mar/15/torture-pervez-musharraf-tacit-approval

    Andy will inbox you govt reply to my letter re past UK govt complicity in torture…you can see the govt will no longer answer my questions in writing……closing me down…but not without a fight!

  13. Andy Worthington says...

    Yusuf Mohammed Abdullah ‎wrote:

    Carol Anne Did they expect Musharraf to be honest and tell all, and the woman from MI5 she was so uncomfortable, I think she did the interview with her fingers crossed, A truly bizzare program, wonder what next episode wll bring.

  14. Andy Worthington says...

    Mezentian Gate wrote:

    ‎”Change you can believe in” … NOT

  15. Andy Worthington says...

    Thanks, Yusuf, Carol and Mezentian.
    I’ll have to catch up on “the Secret War on Terror” on iPlayer this week. It looked serious, but I’m wary of insiders covering their tracks or just lying. I see, however, that Musharraf at least stirred it up again, as he did in his autobiography when he wrote that, in exchange for handing over hundreds of terror suspects, Pakistan received millions of dollars from the US.

    As for the AUMF, Rep. Barbara Lee (D-CA) tried to repeal it last September. Her proposal “States that the Authorization for Use of Military Force (P.L. 107-40) has been used to justify an open-ended authorization for the use of military force and such an interpretation is inconsistent with the authority of Congress to declare war and make all laws for executing powers vested by the Constitution in the U.S. government.”

    There were 11 co-sponsors:

    Rep. John Conyers [D, MI-14]
    Rep. Keith Ellison [D, MN-5]
    Rep. Raul Grijalva [D, AZ-7]
    Rep. Michael Honda [D, CA-15]
    Rep. Walter Jones [R, NC-3]
    Rep. Dennis Kucinich [D, OH-10]
    Rep. Ronald Paul [R, TX-14]
    Rep. Chellie Pingree [D, ME-1]
    Rep. Janice Schakowsky [D, IL-9]
    Rep. Fortney Stark [D, CA-13]
    Rep. Lynn Woolsey [D, CA-6]

    http://www.opencongress.org/bill/111-h6282/show#bill_list

    And here’s Barbara Lee’s press release from Sept. 30, announcing her submission of the legislation to repeal the AUMF:

    This week, Congresswoman Barbara Lee (D-CA) introduced legislation to sunset and repeal Public Law 107-40, the 2001 Authorization for Use of Military Force (AUMF), over a six month period. On September 14, 2001, Congresswoman Lee was the only Member of Congress to vote against the 2001 AUMF.

    “Nine years ago, I made the unpopular decision to vote against this authorization based on a fundamental belief that a blank check to wage war anywhere, at any time, and for any length does not serve the national security interests of the United States,” said Congresswoman Lee. “In reflecting on the rush-to-war in Afghanistan and President Bush’s misguided war-of-choice in Iraq, my worst fears have unfortunately been realized.

    “Over the last nine years this broad authorization of force has had far-reaching implications which shake the very foundations of our great nation and democracy.

    “It has been used to justify warrantless surveillance and wiretapping activities, indefinite detention practices that fly in the face of our constitutional values, extrajudicial targeted-killing operations, and a policy of borderless and open-ended war that threatens to indefinitely extend U.S. military engagement around the world.

    “It is time for Congress to reexamine, and ultimately repeal this flawed authorization.

    “The alternative, to concede Congress’s constitutional responsibilities and blindly accept the persistence of war without end, is unacceptable.”

    http://lee.house.gov/index.cfm?sectionid=57&sectiontree=35%2C57&itemid=2107

  16. Andy Worthington says...

    Mike Wisniewski wrote:

    New boss same as the old boss. NOTHING changes! He is nothing less than a corporatist imperial president.

  17. Andy Worthington says...

    HEidi PEterson wrote:

    if he is following same policies or worse than bush he is probably not the one making the decisions… it does not reflect in his personality of the man who attended that anti-war church… I wonder who is pulling the strings in this country?

  18. Andy Worthington says...

    Endlessly fascinating questions, Heidi, regarding the extent to which various power blocs (White House, Pentagon, CIA, Justice, State) exert power and influence on each other.
    As for Obama, I wouldn’t underestimate the extent to which an ambitious politician can and will adapt his or her personality according to the prevailing circumstances.

  19. Andy Worthington says...

    Frank LeFever wrote:

    That church was in a different neighborhood and a different time; when in Rome, do as the Romans do (“Toto, I don’t think we’re in Kansas anymore, so nevermind that anti-war stuff; that was then, this is now”).

  20. Andy Worthington says...

    Tony Smith wrote:

    When the establishment tell us we have a new saviour, is when we should be at our most guarded. Blair will save us, Obama will save us, etc, etc…

  21. Andy Worthington says...

    Willy Bach wrote:

    What can we say? Re-posting, of course. Barack Obama is intent on destroying the last vestige of democracy and justice in the USA, continuing the work of GWB.

  22. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    Creepy photo of Bush-Obama transformation!

  23. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    I am your biggest fan too :) I am an Andy groupie :)

  24. Andy Worthington says...

    Jay Lozier wrote:

    It would be so much easier for him to be President of China…at least they have that interweb kill switch to prevent online feedback.

  25. Andy Worthington says...

    Jo Ellen Patrick wrote:

    Think about this: If you want them to be released into our country, would you be willing to open up one of your spare bedrooms and let them come live with you? Then tell me, how well did you sleep knowing they are in your house? I think this was one of O’s best decisions.

  26. Andy Worthington says...

    I have shared hotel rooms with former Guantanamo prisoners, in the UK and in Poland. I have traveled up and down the UK in a car with a former prisoner. I would do the same with the majority of the prisoners released from Guantanamo, but not, of course, with anyone who is actually dangerous and would bear malice towards me. However, as intelligence sources have repeatedly stated over the years that only a few dozen of the men held at Guantanamo are dangerous, I would have no problem at all offering a room to a former prisoner cleared for release from the prison.

  27. Andy Worthington says...

    Tashi Farmilo-Marouf wrote:

    I agree :) I would welcome them to come live with me. There are millions of freed prisoners in this world… walking down the streets, sharing your cities. I would worry way more about pedophiles than I would former Guantanamo prisoners. And even if someone committed a crime – does not mean they are incapable of change. But with attitudes like that floating around, I am not surprised that hatred continues on in our world. Very sad.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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