With the death of Osama bin Laden, there is a perfect opportunity for the Obama administration to bring to an end the decade-long “War on Terror” by withdrawing from Afghanistan and closing the prison at Guantánamo Bay, Cuba.
The justification for both the invasion of Afghanistan (in October 2001) and the detention of prisoners in Guantánamo (which opened in January 2002) is the Authorization for Use of Military Force, passed by Congress on September 14, 2001, just three days after the 9/11 attacks.
Under the AUMF, the President is “authorized 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 harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
In 2004, in Hamdi v. Rumsfeld, the Supreme Court confirmed that the AUMF also authorizes the detention of those held as a result of the President’s activities, although, as law professor Curtis Bradley explained last week on the Lawfare blog, “Justice O’Connor’s plurality opinion in Hamdi made clear that the Court was deciding only the authority to detain in connection with traditional combat operations in the Afghanistan theater.” Bradley also noted, “As for the proper length of detention, O’Connor largely avoided the question, although she did refer to the traditional ability under the international laws of war to detain individuals until the ‘cessation of active hostilities.’”
With bin Laden’s death, the route should now be open for the President to assert that he has used “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,” and to get out of the unwinnable morass that is the ongoing occupation of Afghanistan.
Moreover, with a withdrawal of troops from Afghanistan, the justification for holding men at Guantánamo would also vanish, and the government would have the opportunity to return to the detention policies that served everyone perfectly well before the 9/11 attacks: prosecuting those involved with alleged terrorist activities in federal court, and holding soldiers as prisoners of war, protected by the Geneva Conventions, and freeing them at the end of hostilities.
That, however, is too sensible a suggestion for those who, rather than accepting bin Laden’s death as the logical end of a decade of “war” that has been both ruinously expensive and morally and legally disastrous, and that has also led to a chronic loss of life, want exactly the opposite: a springboard for an even bigger “War on Terror,” and a cynical excuse to keep Guantánamo open forever.
On the first point, with reference to the AUMF, a version of the 2012 defense bill, which is currently before the House Armed Services Committee, and which is known as the “Chairman’s mark,” because of the role played in its development by the committee’s chairman, Rep. Buck McKeon, proposes updating the AUMF rather than scrapping it, to “reflect,” as Spencer Ackerman explained in an article for Wired, “that the al-Qaeda of the present day is way different than the organization that attacked the US on 9/11.” Ackerman added, “While the original Authorization tethered the war to those directly or indirectly responsible for 9/11, the new language authorizes ‘an armed conflict with al-Qaeda, the Taliban, and associated forces,’ as ‘those entities continue to pose a threat to the United States and its citizens.’”
Rep. McKeon has been arguing since last fall that Congress needs to approve, or disapprove of America’s current state of war, but such a revision to the AUMF — potentially expanding the “War on Terror,” with the explicit approval of Congress, into Pakistan, Yemen, or anywhere the President perceives a threat and wishes to act — is “a big expansion of executive authority,” in Spencer Ackerman’s words, and, according to Karen Greenberg, the executive director of the Center for Law and Security at New York University, is close to “terrorism creep,” It is also, In Greenberg’s opinion, hasty. Before thinking about expanding the “War on Terror,” she explains, the US “need[s] to absorb first what the death of bin Laden means. We need to stop and think and re-think. The idea that we’re going to keep reacting and not have a thoughtful time out is just unacceptable.”
From my point of view, the proposal for the AUMF, as well as opening up new “battlefields” without necessary scrutiny, also breathes new life into a problem that has plagued the “War on Terror” from the beginning, and that should now be coming to an end, rather than being indefinitely sustained: the confusion of the Taliban, fighting a military conflict in Afghanistan (and in the Pashtun parts of Pakistan) with al-Qaeda, a terrorist organization.
This failure to distinguish between the Taliban and al-Qaeda has bedevilled those held at Guantánamo, who were labeled as “enemy combatants” and easily dressed up as terrorists, as the recent release by WikiLeaks of classified military documents relating to the prisoners has shown, when, in fact, the prison has never held more than a few dozen prisoners genuinely accused of involvement with terrorism. As a result, the prison has largely been responsible for demonizing soldiers instead of terror suspects, and this remains as true today, with 172 men still held, as it was when Guantánamo opened.
Despite the new proposal for the AUMF, it is by no means certain that the Obama administration wants a new Authorization. In the wake of bin Laden’s death, John Brennan, the President’s advisor on homeland security and counterterrorism, suggested that bin Laden’s death and the pro-democracy revolts in the Middle East were the beginning of the end for al-Qaeda, and Jeh Johnson, the Pentagon’s top lawyer, is also resistant. In March, he told the House Armed Services Committee that the 2001 AUMF was “sufficient to address the existing threats I’ve seen.”
The administration’s main problem with the proposal for a new version of the AUMF may relate more to Guantánamo, whose closure remains an objective of the administration, as Attorney General Eric Holder explained in the wake of bin Laden’s death, than to military operations in general. The proposal for a new AUMF “would keep Guantánamo Bay open practically forever,” in Spencer Ackerman’s words, because it reintroduces military assessments regarding the threat level posed by the prisoners, prevents the resettlement of prisoners in the US (even if a review panel assesses that they are not a threat), makes it almost impossible to transfer prisoners to other countries, and prevents the administration from buying or adapting a facility to hold Guantánamo prisoners in the US — mostly replays of the abominable additions to this year’s defense spending bill, but with the “military assessments” as a bonus.
Moreover, Rep. McKeon and his supporters are not the only lawmakers intent on keeping Guantánamo open, even though the object of most of the interrogations over the last nine years — Osama bin Laden — is now dead. On May 11, six Senators — the Republicans Lindsey Graham, Kelly Ayotte, Scott Brown, Saxby Chambliss and Marco Rubio, plus Joe Lieberman — introduced the “Detaining Terrorists to Secure America Act,” based on a right-wing response to bin Laden’s death, which, in defiance of expert testimony by numerous interrogators over the last two weeks, relies on a false belief that detention in CIA “black sites,” the use of torture and the existence of Guantánamo all contributed to locating bin Laden.
This mistaken approach to intelligence gathering ignores the truth — that interrogators using lawful, non-coercive methods did not need torture, “black sites” or Guantánamo to secure the necessary information. In fact, Guantánamo, a prison in which randomly seized prisoners were subjected to years of coercion until they told lies about each other, is the opposite of the targeted, specific intelligence from a handful of significant prisoners that was needed to begin the long process of finding bin Laden.
Even so, in comments after the proposed legislation was announced, Sen. Chambliss, the ranking Republican member of the Senate Select Committee on Intelligence, and a member of the Senate Armed Services Committee, focused specifically on Guantánamo, with the purpose of keeping it open forever and using it for the detention and interrogation of new prisoners, claiming, “The events of last week underscore the importance of information we obtain for detainees, particularly those at Guantánamo Bay.” He added, “For months, we have been asking administration officials where we could hold detainees we may capture. This legislation provides an answer and gives us the chance to gather actionable intelligence to keep our country safe.”
Sen. Chambliss also drew on discredited claims, emanating from the Pentagon, in which it has been claimed, without evidence, that 1 in 4 of the 600 prisoners released from Guantánamo — an impossible total of 150 prisoners — have “returned to the battlefield,” or engaged in terrorist activities against the US. “[A]s recidivism rates are more than 25 percent,” Sen. Chambliss said, “we cannot afford to let more dangerous detainees return to the fight.”
Like the amendments to the 2012 defense bill in the House of Representatives, the “Detaining Terrorists to Secure America Act” would also prohibit the transfer of any prisoner to any facility on the US mainland, preventing the President from closing it, while, as the Senators hope, adding to its population.
With all this opposition, it is difficult to see how the “peace dividend” that should result from bin Laden’s death can be realized, but that, of course, is no reason for opponents of war, of arbitrary detention and torture, of pointless and ruinously expensive foreign policies and counter-terrorism policies to give up. On the contrary, it is time for us to speak up louder than ever.
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, Twitter, Digg and YouTube). 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.
As published exclusively on the website of the Future of Freedom Foundation.
On Facebook, Bee Bumble wrote:
Proves Osama was just an excuse to invade and occupy and to torture..
Abu Jafar Mujahid wrote:
If it was not Osama, they would have found another excuse. Remember the Weapons of Mass Destruction lie?
Bee Bumble wrote:
True…now they are dropping bombs on the innocent for ‘humanitarian’ reasons….it gets sicker and sicker..
I would like to see the war criminals Bush, Bliar and O’bomber in Gitmo.
Bolaji Jaiye Ola Agboola wrote:
The war will end if only and only violence can restore everlasting peace.
Rod Such wrote:
Economic forces–that is, the permanent war economy–run the show. A lot of profit to be made from fear.
Thomas Price wrote:
the “war on terror” was never meant to end. its going to last until every natural resource is taken from foreign lands. “terrorism” will get worse and worse and then everyone will have a RFID Chip in their arm. and if you speak out against your corporate masters they will shut your chip off and stick you in a FEMA camp.
Sharon Askew wrote:
”A missile strike from an American military drone in a remote region of Yemen on Thursday was aimed at killing Anwar al-Awlaki. The attack does not appear to have killed Mr. Awlaki, the officials said, but may have killed operatives of Al Qaeda’s affiliate in Yemen.”
The no 1 target is now replaced by another no 1 target it seems, if the USA were to close Guantanamo Bay as it is now, there will be very little justification to continue with a US base in Cuba, which in itself is on the state terrorist list.
Zahara Ali wrote:
Thomas, true, there is no end…there will never be an end! The US is the biggest terrorist! The victims are the muslims because, of course, they are the terrorists and it’s all about national security and muslims are the targets. The majority of Americans are brainwashed by their corrupt government and will go along with anything, sadly!
Thomas Price wrote:
yea i know…. Im American lmao
Matt Diaz wrote:
Spot on, Zahara.
Kryss Katsiavriades wrote:
Terror has replaced Communism as a reason to invade and occupy countries.
Zahara Ali wrote:
America could be such a great country, people still dream about it they just see the glitsy part, the famous American Dream! It’s not like in the movies, I wish it was, I love the movies. America should be an example to the world….. but it is the opposite, a hateful, greedy, zionist controlled hell, so sad. What happened!
Matt Diaz wrote:
Corporations, fear, exceptionalism, apathy took over.
Nab Abdali wrote:
america is a live example of bigotry. recently an imam abdul lateef was denied to board a plane just on the basis of his appearance and when his attorney demand an answer he was not offered any replies. there are numerous instances which proves america is just a vested country of vested interest. even the uprising which is happening in the libya and other arab countries america and his allies are ready to support the rebels to fight WITH THE PRESENT GOVT. WHY? BECAUSE IN FUTURE THEY WILL SIGN SOME AGREEMENT AGAIN OF THEIR VESTED INTEREST.
Thomas Price wrote:
the majority of my American brothers and sisters are brainwashed. the American dream is dead and never was really alive in the first place. the top 2% control everything because they have all the money. control the money, control the world. it’s called “the American dream” because you have to be asleep to believe it.
George Kenneth Berger wrote:
I’ll read it and then digg and share it, Andy.
George Kenneth Berger wrote:
I read it. Very good, and probably better than the several articles I have seen but not read on continuation and Guantanamo. The two key phrases are ‘associated forces’ and ‘continue.’ The first seems to be the usual broad legal formulations that I once mentioned here. It can, for example, include ‘same generic religion.’
Angus Lindsay wrote:
“The story of terrorism is written by the state…compared with terrorism, everything else must be acceptable, or in any case more rational and democratic.” Guy Debord, ‘The Society of the Spectacle’.
Thank you, everybody. Great to hear from you all, and glad to know that the ongoing warmongering activities of various vested interests in the United States are not going unnoticed.
Tamara Zawadzki wrote:
Rob Weaver wrote:
keep perpetuating the lies of the warmongers, Are you controlled fake opposition?
Thanks, Tamara. Good to hear from you. And Rob, I have no idea what you’re on about. How could I possibly be perpetuating the lies of the warmongers, when my entire article is dedicated to opposing the lies of the warmongers?
Rob Weaver wrote:
Bin Laden has been dead for 10 years. You just believe these liars who keep changing their story with no evidence? Dumped in the ocean? Come on.
I don’t say I believe it, Rob, but my article is a response to how the story is being treated — used an an excuse to ramp up torture and arbitrary detention, when, on its own terms, it should be the start of disarmament, the key to withdrawal from Afghanistan, and a return to the law as it existed pre-9/11.
Rob Weaver wrote:
You pre-suppose it’s truth when none of it makes sense and they are caugtht in lie after lie concerning the incident, and everything else.
Now they say he had porn–as if that justifies murdering an unarmed man who the FBI said had nothing to do with 9/11. And if he had porn, he was not a Muslim, so why the war on Muslims?
Witnesses say it was not Bin Laden.
Again, I’m not pre-supposing anything. I’m dealing with it as it is being interpreted by those in power. I can’t analyze what lawmakers are doing if I don’t progress beyond self-feeding discussions about the truth — or not — of bin Laden’s death.
Rob Weaver wrote:
So you promote the false narrative, and soft-peddle the war crimes. Sounds like the Democratic false opposition.
“An effective propaganda media system must display ostensible diversity that conceals an actual uniformity in message.”–Joseph Goebbels
Naim AbdurRafi wrote:
Andy. Let them go their way. You go your way.
Ciudadano Kane Kane wrote:
Thanks!, Andy!, shared!
Bobrobert Graham wrote:
remember hearing this “peace dividend” concept after the fall of the Solviet Union……that’is when US created the new enemy “terrorism”…….can US survive without “enemy”?
Yes, Bobrobert, and recall who the defense secretary was when the “peace dividend” was due at the fall of the Soviet Union — none other than Dick Cheney!
For a concise guide to Dick Cheney’s history, including his role as defense secretary under George H.W. Bush, see my review here of John Nichols’ book, “Dick: The Man Who Is President”: http://www.andyworthington.co.uk/2007/06/26/dick-cheney-invisible-tyrant/
And thanks also, Naim and Ciudadano. Very good to hear from you.
Harold Helm wrote:
shared – thanks Andy !
Ghaliyaa Haq wrote:
Rob: Andy is not perpetuating lies – he is dealing with the facts of what’s going on right now in regards to this huge mess – whether this murder happened or not doesn’t matter for the purpose of this – the idea is that the US is now using it to expand its “war on terror.” See the bigger picture.
Bob Witanek wrote:
actually the bin laden hit has been used as a selling point for greater militarism, targeted killings, support for torture tactics, etc
Thomas Price wrote:
after America defeats the “terrorist” the new enemy will be “aliens” lol
I have mentioned a theory about the claims apologists for Guananamo make about recidivism. Forgive me if I have mentioned it in response to earlier articles of yours Andy.
Many captives mention being told that, prior to their release or repatriation, they have to sign a contract, and that the contract includes promising never to support terrorism, or forces opposed to the USA, or its allies — and key point — not to criticize the conditions at the Guantanamo camp.
DoD spokesmen used to claim that the DoD didn’t keep files on former captives. But they obviously do keep those files, and I believe they classify former captives as “supporting terrorism” simply for giving honest answers to reporters’ questions about camp conditions. This would explain the fact noted in one of the Seton Hall studies. One of the earlier lists of recidivists included the three former captives from the UK, known as the “Tipton Three”, and the first five Uyghurs sent to the refugee camp in Albania.
I am not a lawyer, but I thought contracts signed under coercion, as these were, weren’t legally valid.
Technically, don’t you have to be convicted before you can be considered a possible recidivist, if you are suspected of an offense following your release?
If an individual is charged, detained, but those charges are dropped before they go to trial, they continue to be considered innocent. And if at some later date they are charged again, and convicted, I don’t believe they are technically recidivists.
Only about three dozen captives have faced charges.
Only two Guantanamo captives who were sentenced by Guantanamo military commissions have been released — Salim Hamdan and David Hicks.
Since there are no reports either of them has committed so much as a traffic offense, I think the actual recidivism rate is 0.0 percent.
Some of the torture apologists have tried to claim that determining the location of Osama bin Laden had relied on torture. They have claimed that they knew “al-Kuwaiti” was an important name, because Khalid Sheikh Mohammed claimed he had never heard of this name.
There was a cold-war theorist, named Herman Kahn, originally at Rand, later the founder of the Hudson Instittute, who had an interesting yiddish folk-story he used to illustrate the dangers of over-thinking one’s suspicions. Paraphrasing from memory, the suspicious individual tells a traveler:
“You can’t fool me! You say you are travelling to Minsk…
“But you want me to think you are actually going to Pinsk…
“However, you can’t fool me, because I happen to KNOW you are going to Minsk!”
Every time I read a torture apologist asserting that they knew al-Kuwaiti was an important name, because KSM denied knowing this name, I am reminded of Kahn’s folk-story warning about over-thinking.
Thanks, arcticredriver. Always good to hear from you.
Your points about the supposed “contracts,” which many refused to sign, and also about recidivism, which, as you note, can’t exist without legal proof of prior engagement against the US, just goes to show how, when it comes to Guantanamo, the normal rules don’t apply.
For Portuguese readers, a translation is available via my friend Murilo Leme, at his website, “Translations”: http://zqxjkv0.blogspot.com/2011/05/fff-commentaries-no-end-to-war-on.html
The opening paragraph is below:
Com a morte de Osama bin Laden desenha-se oportunidade perfeita para a administração Obama acabar com a decenal “guerra contra o terror” mediante retirada do Afeganistão e fechamento da prisão da Baía de Guantánamo em Cuba.
[...] 4. The war was launched to capture Osama bin Laden — “wanted dead or alive.” He is now dead but the war continues. [...]
“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”-William Pitt the younger
Thank you, Corporal!
[...] open-ended excuse for endless war whose repeal I have long encouraged, but which some lawmakers have been itching to renew, even after the death of Osama bin Laden, and the obvious incentives for the winding-down of the [...]
[...] These passages were an unwarranted and unconstitutional assault on the President’s powers, as even Conservative commentators recognized, but Obama again failed to challenge his critics. This reinforced them to such an extent that, in May, when dealing with this year’s defense authorisation bill, lawmakers in the House of Representatives responded to the news of the assassination of Osama bin Laden not by declaring an end to the “War on Terror,” but by insisting that the basis for that war — the Congress-approved Authorization for Use of Military Force, passed the week after the 9/11 attacks — should be renewed and made even more sweeping. [...]
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