Last week, when the Senate voted, by 93 votes to 7, to pass the latest National Defense Authorization Act (PDF), they passed legislation that not only approved a budget of $662 billion in military spending for the next fiscal year, but also demanded mandatory military custody for all terror suspects seized in future.
The military custody provisions were conceived, in a secretive manner, by the Senate Armed Services Committee, which also updated previous provisions preventing the closure of Guantánamo. This was achieved through two measures: banning the use of funds to purchase or adapt any other prison to hold the 82 prisoners that the Obama administration has said it wants to hold (for trial or indefinite detention), and imposing conditions on the transfer of any of the other 89 prisoners that the administration does not want to hold.
These designations were made through the careful deliberations of the interagency Guantánamo Review Task Force established by President Obama, which included career officials and lawyers not only from various government departments, but also from the intelligence agencies. However, while critics on the left and the right have long criticized any plan to move prisoners from Guantánamo to the US mainland, Congressional restrictions on releasing prisoners have become progressively more onerous over the last two years, since lawmakers first voted to prevent Guantánamo prisoners from being brought to the US mainland for any reason, except to face a trial.
That was followed by a ban on bringing prisoners to the US mainland for any reason, preventing federal court trials for any of the Guantánamo prisoners (and explicitly preventing the planned trial of Khalid Sheikh Mohammed and four of the men accused of involvement in the 9/11 attacks), and lawmakers then began to impose restrictions on the release of prisoners regarded as dangerous.
A year ago, lawmakers prevented 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, and this in turn, led to a section in the latest legislation insisting that no transfer out of Guantánamo will be allowed “if there is a confirmed case of any individual who was detained at [Guantánamo] who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.”
My problems with the Guantánamo provisions of the NDAA are the same as they were nearly a year ago, when David B. Rivkin Jr. and Lee A. Casey, lawyers who served in the Justice Department under Ronald Reagan and George H.W. Bush, identified the provisions as unconstitutional in an op-ed in the Wall Street Journal. The latest brake on transfers to countries with even a solitary claim of recidivism is monstrously disproportionate, as it is a horrible example of “guilt by nationality.” Imagine imposing the same restrictions on prisoners in the US domestic prison system, who couldn’t ever be freed if there was a single act of recidivism recorded by a released prisoner, and it becomes apparent that it only works when applied with a broad brush of prejudice against entire countries.
Despite the fact that the sections on Guantánamo are designed to prevent the closure of the prison — which is shameful as the 10th anniversary approaches of the opening of this experimental facility devoted to arbitrary detention — most commentators have overlooked these sections of the NDAA and have focused instead on the military custody provisions.
There are, to be fair, good reasons for this. As Sheldon Richman explained on Reason.com, for example:
Permit me to state the obvious: The government shouldn’t be allowed to imprison people indefinitely without charge or trial. It shouldn’t be necessary to say this nearly 800 years after Magna Carta was signed and over 200 years after the Fifth Amendment was ratified.
Yet this uncomplicated principle, which is within the understanding of a child, is apparently lost on a majority in the US Senate. Last week the Senate voted … to authorize the executive branch to use the military to capture and hold American citizens indefinitely without trial — perhaps at Guantánamo — if they are merely suspected of involvement with a terrorist or related organization — and even if their suspected activity took place on US soil.
Sheldon Richman and other commentators are correct to sound the alarm bells, although it should be noted that the Senate’s actions are a logical extension of fundamental problems at the heart of the “war on terror,” which have never been adequately addressed.
On September 10, 2001, terrorists were criminals, and had been successfully prosecuted as such in the US courts. Less than six weeks after the 9/11 attacks, for example, four men — Mohamed al-‘Owhali, Khalfan Khamis Mohamed, Mohamed Odeh and Wadih el-Hage — were sentenced to life without parole for their roles in al-Qaeda’s bombing of two US embassies, in Kenya and Tanzania, on August 7, 1998.
However, when the Bush administration declared a “war” on al-Qaeda and the Taliban, two parallel worlds came into existence. In the first, federal court trials still took place for those accused of terrorism, but in the other, soldiers became terrorists, terrorists became warriors, and trials — if they were contemplated — were only to take place at Guantánamo, and were to be military trials.
As the Bush administration found its “war on terror” challenged — from Guantánamo to the CIA’s secret prisons, and from extraordinary rendition to arbitrary detention and torture — the programs were scaled back or shut down. Around two-thirds of the prisoners at Guantánamo were released, and the CIA’s secret prisons were closed when, in June 2006, the Supreme Court reminded the administration that all its “war on terror” prisoners were entitled to the baseline protections of Common Article 3 of the Geneva Conventions, which prohibit torture and “outrages upon personal dignity, in particular humiliating and degrading treatment.”
For President Obama, Guantánamo has become largely a legacy issue, albeit one that he is in no hurry to deal with, having discovered that doing so would involve effort and principles. Instead, he has been content to rely on holding the remaining prisoners on the basis of the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, and has shown little appetite for the kind of custody issues that ended up causing difficulties for his predecessor. Instead, he has been seduced by drone killings and the assassination of enemies from afar, even US citizens, eliminated without due process.
For the Senate, however — and especially the lawmakers in the Armed Services Committee — the laws governing the detention of terrorists are an obsession, even though it is now over ten years since the 9/11 attacks, Osama bin Laden is dead, and most of al-Qaeda’s leaders have been killed (or, in a few cases, are in Guantánamo). Moreover, in all this time, the courts have continued to demonstrate that they are more than capable of trying terrorists, and are certainly more able than the military system at Guantánamo. Nevertheless, with this legislation, the Senate is trying to bring federal court trials for terrorists to an end, forever, in the face of widespread opposition, particularly from law enfacement officials, who are alarmed that the mandatory military detention of terror suspects will be dangerously counter-productive.
The answer to their concerns is simple. Return to the law as it existed pre-9/11, and prosecute terror suspects as criminals. But while that involves extradition, or trials in other countries, what it doesn’t involve is what those pushing for mandatory military custody of all terror suspects want — for terrorists to be warriors. They are not, and they never have been and never will be.
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 June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see 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, Jim Koenig wrote:
the confusion comes from the fact that the true terrorists are within the american government
I like that, Jim. Thanks.
George Kenneth Berger wrote:
Jim Koenig wrote:
This I found particularly interesting. “A year ago, lawmakers prevented the President from releasing any prisoner “unless Defense Secretary Robert M. Gates signs off on the safety of doing so,” Robert Gates… Appointed by George Junior can be traced back to George Senior and Iran/Contra. Is it possible that George Senior is STILL running the country?!? It wouldn’t suprize me.
George Kenneth Berger wrote:
I will share this. It’s excellent. The sentence about Secretary Gates struck me too, although I won’t draw Mr Koenig’s inference without a lot of evidence. But his main verb is “possible,” which renders it a speculation, not a conspiracy theory.
Toia Tutta Jung wrote:
It´s not a conspiracy theory; it doesn´t matter who´s running the country (USA), it doesn´t matter who is representing the power. What matters is the fact that there is no limit to the abuse of power we´ve seen since 9-11. That happens on a global level.
Jim Koenig wrote:
Re: Evidence, lol Although there are picture that put George Senior in Dallas, he claims he “can’t remember” where he was when Kennedy was shot.
Knew “nothing” about Iran/Contra and stood to inherit the presidency if Hinkly had been successful in killing Reagan.
It’s only a coincidence Hinkly’s brother was having dinner with Bush’s brother the same day.
Was having lunch with the BinLadens on 9/11…
This is a man who can dodge bullets. (figuratively speaking)
He claims that to this day that he still reads the presidential daily briefings.
CIA Chief, Council on Foreign Relations, Carlyle Group, Best friends of the Saud Royal Family, Skull and Bones, Tri’Lateral and Bilderberger…
This is a man who makes sure there is no evidence. Something that helped him become Head of the CIA, I’m sure.
George Kenneth Berger wrote:
The reference to Secretary Gates struck me several days ago. I see it as implying that all Mr Gates has to do to keep the status quo is to say nothing. Then nobody gets released.
Thanks again, Jim, and George and Toia and everyone who has shared this. I actually think “fill in the blank” is the defense secretary’s name when it comes to Congressional demands regarding the submission of a “waiver,” should the administration dare to want to release a prisoner from Guantanamo. Now it’s Leon Panetta, but the situation’s no different.
What’s always interested me much more about Gates is the continuity from George W. to Obama. Either he was kept in the job because Obama and his team had no one with knowledge of the Pentagon, or it was a sign that there would be no major changes from one administration to the next. And that, of course, is largely what we’ve seen, so Gates really did function as the most prominent bridge between Bush and Obama.
George Kenneth Berger wrote:
Thanks, Andy. I knew nothing about Gates until a year or so ago.
And thanks, Jim.
Jim Koenig wrote:
Yep… Gates was the “puppet” behind the curtain… pushing buttons, pulling levers, and putting up road blocks… He will be missed. by some. The same guy who came out publicly, the day after Obama claimed we were withdrawing from Afghanistan and said,….. “We are NEVER leaving”
Yes, Gates was for the most part the “quiet” replacement for Rumsfeld, George, but it really did look like “business as usual” when he was retained by Obama. I recall that, early in 2009, I kept wondering if he would be leaving, and then I think the continuity fell into place when Obama caved in on thoroughly repudiating Bush’s policies and making a clean break in his National Archives speech in May 2009. I don’t know if/when details will emerge, but it always struck me that the CIA and the Pentagon were driving “national security” issues from that point onwards.
Thanks also, Jim. And yes, that Afghanistan statement fits the picture very well. Obviously, part of the continuity was that everyone was agreed at the time of the Presidential election in 2008 that Iraq was to be scaled down, but Afghanistan was to become a bigger priority. It’s one of those things that Obama openly promised on the campaign trail that was overlooked by many of his supporters at the time.
George Kenneth Berger wrote:
This is an interesting discussion, to a relative outsider like myself. Such abrogation of power reminds me of Emperor Tiberius, who ran off to Capri and left all policing power up to A. Sejanus, the head of the Praetorian Guard. Like now, this led to arbitrary military justice, with decisions left up to Sejanus alone.
Roman Empire analogies — very appropriate, George!
[…] year, but also demanded mandatory military custody for all terror suspects seized in future.Source:http://www.andyworthington.co.uk/2011/12/10/terrorists-as-warriors-the-fatal-confusion-at-the-heart-… Posted by anacrismerino at […]
Andy do u only make Guantanamo films or do u also make popular mainstream movies?
And I also want to ask u that this film that you’ve made, Is it a decent movie, I mean it doesn’t have any naked scenes in it? because all the British films I have seen have nude scenes, and love making scenes are very shocking. it is simply unacceptable in our culture. In almost every film the actors and actresses are totally naked having sex like animals, and other immoral acts and being topless for a woman is a matter of routine. Even in the most literary kind of movies. Perhaps westerns are used to such obscenity but we are not.
(You probably know that in our society acting and this film line is not considered a respectable profession. Only prostitutes, courtesans come into the film business. And films have always been synonymous with red-light district, taboo. It is frowned upon by people at large.)
Do you also condone & not mind it?
I understand that it’s part of your culture. U know on the net these medical schools have objectionable, naked physical/medical examination videos, (not talking bout pornos) aren’t these people ashamed? You know I’d be embarrassed even to name those examinations to you, though u r not physically in front of me. whereas in our culture a person would commit suicide or if remain alive would most probably lose their mental balance forever if they are photographed or videotaped in such a manner.
The only film I’ve made is about Guantanamo, Meera, and it would only upset those who don’t want to hear that torture, brutality and arbitary detention is wrong.
So there are nude scenes in it? that i want to ask , y don’t u tell me?
It’s a documentary about torture and arbitrary detention, Meena, so no, there isn’t any nudity in it.
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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