Before the terrorist attacks on September 11, 2001, there were only two ways of holding prisoners — either they were prisoners of war, protected by the Geneva Conventions, or they were criminal suspects, to be charged and subjected to federal court trials.
That all changed when the Bush administration threw out the Geneva Conventions, equated the Taliban with al-Qaeda, and decided to hold both soldiers and terror suspects as “illegal enemy combatants,” who could be imprisoned indefinitely without charge or trial, and with no rights whatsoever.
The Bush administration’s legal black hole lasted for two and a half years at Guantánamo, until, in Rasul v. Bush in June 2004, the Supreme Court took the unprecedented step of granting habeas corpus rights to prisoners seized in wartime, recognizing — and being appalled by — the fact that the administration had created a system of arbitrary, indefinite detention, and that there was no way out for anyone who, like many of the prisoners, said that they had been seized by mistake.
This was not the end of the story, as the Bush administration fought back, Congress attempted to strip the prisoners of their habeas rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 (PDF), and the Supreme Court had to revisit the prisoners’ cases in June 2008, in Boumediene v. Bush, reiterating that they had habeas corpus rights, and that those rights were constitutionally guaranteed.
Unfortunately, although this ruling enabled some of the Guantánamo prisoners to secure their release via the US courts, by having their habeas corpus petitions granted, the appeals court in Washington D.C. (the D.C. Circuit Court) has been fighting back, gutting habeas corpus as a remedy by insisting, ludicrously, that the government’s evidence, however obviously unreliable, should be given the presumption of accuracy.
While this continues to be fought over, the bigger problem is that the entire rationale for Guantánamo has never been adequately challenged. The basis for holding prisoners is the Authorization for Use of Military Force, passed the week after the 9/11 attacks, which authorizes the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or 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 June 2004, while granting the Guantánamo prisoners habeas rights, the Supreme Court also confirmed, in Hamdi v. Rumsfeld, that the AUMF allows prisoners to be detained until the end of hostilities, thereby confirming the AUMF as an alternative to the Geneva Conventions, without anyone in a position of authority being required to explain why the Geneva Conventions no longer apply to soldiers, and why terror suspects are being held as “warriors,” rather than as criminals.
With this fundamental misconception — or this warped reshaping of the rules governing detention — which was at the heart of the Bush administration’s “war on terror,” and is confirmed in the continued reliance on the AUMF by all three branches of the government, it is no wonder that it has become impossible to even mention the fact that wartime detentions used to accord with the Geneva Conventions, and it has also become impossible for advocates of federal court trials for criminals to win out over those calling for military commission trials instead, even though hundreds of terror suspects have been successfully prosecuted in federal courts in the last ten years, as opposed to just six in military commission trials.
The result of this unilateral rewriting of the rules governing wartime detentions is that soldiers remain held at Guantánamo where they are lazily, but dangerously regarded as terrorists, and the wartime prisoners held in actual combat zones — at Bagram, for example — are not held according to the Geneva Conventions, but are detained arbitrarily, and are then subjected to invented review boards so that the military can decide what to do with them. This ought to be a cause for alarm, but it is apparently taken for granted.
In addition, the result of the insistence that terror suspects must not be tried in federal courts has had far-reaching effects that, in the last few weeks, have been causing great consternation to libertarians and liberals alike.
On the face of it, this consternation is well-founded. In provisions inserted by Congress into the 2012 National Defense Authorization Act, lawmakers insisted on creating legislation that makes it mandatory for terror suspects to be held in military custody, without charge or trial, and not to be allowed anywhere near the federal court system.
The mere fact that lawmakers could have worked themselves up into enough of a frenzy to pass this legislation is profoundly depressing, of course, but as Marty Lederman and Steve Vladeck explained in an article for the Lawfare blog on December 31, intense negotiations between the administration and Congress, with input from numerous deeply concerned groups and individuals, succeeded in watering down the intent behind this provisions so that it is not really appropriate for critics to wail that the NDAA will allow Americans to be held indefinitely in military custody. As they explained:
[S]ection 1022 purports to establish a presumption in favor of indefinite military detention, rather than criminal arrest and prosecution, for some future foreign al-Qaeda suspects. In the President’s words, it is in this respect “ill-conceived and will do nothing to improve the security of the United States,” and “is unnecessary and has the potential to create uncertainty.” Fortunately, amendments adopted late in the legislative process … will, we think, ensure that section 1022 is mostly hortatory, and will in practice allow the President to adhere to his commitments that “suspected terrorists arrested inside the United States will — in keeping with long-standing tradition — be processed through our Article III courts, as they should be”; that “our military does not patrol our streets or enforce our laws — nor should it”; and that “when it comes to US citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”
Even so, as Marty Lederman and Steve Vladeck also explained, drawing on comments made by Raha Wala of Human Rights First, “the very existence of section 1022 might give a future Administration a slight measure of political cover if it decides to reverse President Obama’s policy and begin to detain in military custody persons such as another Abdulmutallab, who are captured in the United States.”
This is a reference to Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, whose recent trial and successful conviction confirmed that the advocates for military custody are driven not by common sense but by irrational fears — or cynical fearmongering. The courts are perfectly capable of safely and effectively prosecuting terror suspects, and lawmakers’ attempts to insist otherwise, if left unchallenged, were likely to have been dangerously counterproductive rather than helpful.
Nevertheless, while obvious disaster appears to have been averted, the huge outpouring of alarm regarding the perceived plan to imprison Americans indefinitely without charge or trial ignores two fundamental issues that still need addressing: firstly, that President Obama has shown himself more than willing to dispose of US citizens he regards as troublesome not by imprisoning them, but by assassinating them in drone strikes; and, secondly, that the foreign victims of the indefinite detention that lawmakers have shown themselves so desperate to revive still need Americans to care about their plight, to bring to an end the unjust situation that has existed for the last ten years, and to cut off the possibility that lawmakers, or the executive branch, can decide in future to revisit these dreadful policies and to revive them again.
As Marty Lederman and Steve Vladeck noted, drawing on an article in the New York Review of Books by David Cole:
David Cole is surely correct that Subtitle D (“Counterterrorism”) [PDF] of the NDAA contains some very troubling provisions — especially sections 1026 and 1027, which continue the deeply unfortunate and counterproductive authorities in current law prohibiting the use of funds to build a facility in the US to house GTMO detainees and to transfer any such detainees to the US for any reason, including criminal trial; and section 1028, which continues the current statutory requirement that the Secretary of Defense must make onerous certifications regarding the receiving nation’s security measures before any GTMO detainee can be transferred to another country. These provisions will continue to prevent the closure of the detention facility at Guantánamo, notwithstanding the President’s view, which we share, that “the prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.”
These are valid points indeed, and with the 10th anniversary of the opening of Guantánamo taking place next week, it is important for US citizens to recall that the fount of the recent hysteria directed, initially, at Americans as well as foreigners, is the enduring legacy of the Bush administration at Guantánamo, where these dark desires have been inflicted on foreign Muslims for the last ten years, and where the will to close this dangerous aberration is lacking in both the administration and in Congress.
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, Patrick Warren wrote:
Indeed, but it is nearly impossible to get Americans to care about a prison on some island where no one plans to visit, much less for the innocents in a country people can’t pronounce in the middle east
Melanie Aston wrote:
Thanks, Patrick and Melanie. I think that’s unfortunately accurate, Patrick. I’m in New York right now, and there’s not much interest. The longer this injustice goes on, the less people care, even though the damage to those remaining at Guantanamo doesn’t get any less with the passage of time.
Gabriele Müller wrote:
Thanks, Andy, sharing.
George Kenneth Berger wrote:
I’m reading and sharing this, Andy. The past few days I have seen a lot of posts about improvements within America, such as a better job climate and the current improvements in some people’s lives due to the Affordable Care Act. Yet except from FB Friends whom I know are generally critical of the Obama administration, I have not seen one post about foreign affairs, Guantanamo, and the NDAA.
Malcolm Bush wrote:
I believe things are getting much worse, by the hour.
George Kenneth Berger wrote:
Charles M Baker III wrote:
Thanks, Gabriele, George, Malcolm and Charles. Great to hear from you, and thanks also to everyone who has shared this.
I think you’re right, George, although not entirely because the mainstream media ignored the NDAA, but because they commented on it, and then moved on, as they always do, meaning that a truly dreadful law is now on the statute book, even if it will not be acted upon imminently, and the media, which could have been trying to position itself as a guardian, is nothing more than a ghoulish spectator.
I am an American and I do not recognize the country I live in now. I feel much less safe with the surveillance, illegal wiretapping and laws like NDAA.
Well, Andy, my friend..You are seeing exactly the problem in the States.
1. The economy kept in a horrendous state in order to draw attention from the real oppression (The government is intentionally delaying action – POTUS, Congress, SCOTUS all work in unison to destroy the Middle Classes. The educated masses are kept concerned about their survival)
2. The control by the corporate cabal who would enslave anyone with the balls to speak out – and that is EXACTLY what the NDAA is all about. Obama’s “signing statement” means squat. It isn’t law, it is a perception of how he may or may not act – and when he is gone, even less
Now you know my comments over the past few months. Frustration at the lack of concern by those who should be MOST concerned!
WE the PEOPLE of the United States of America are committing these acts in our name through the “leaders” we have allowed to own our particular asses.
We enslave ourselves with irons of fear and angst at a perceived “OTHER” and that “other” is our own self screaming to be acknowledged by us.
We are allowing ourselves to be conned and manipulated into hating and fearing by liars and con-men and women so we accept the murder and kidnapping; torture and abuse of innocent men, women and children.
The enemy is US!
Its not just stateside,
Its global and its deliberate. In Australia almost exactly the same assaults on habeas corpus have been instigated over the last decade by local satraps as the two shopfront parties embark on a race to the bottom on things legal, to “harmonise” with the US and Euro military/ideological/commercial establishments.
Here the initial thrust under Howard was blunted as the notorious DR Haneef case descended into brutal farce, back in 2007 perhaps the local equivalent to the whistleblower in Britain who was driven to suicide for belling the cat on Iraq’s bogus weapon, whose death shattered the legitimacy of the Blair apparatchiks. Also the despicable racist “Intervention” involving aborigines here, which non-personned this unfortunate minority in the most demeaning of ways.
Since they have contented themselves with maintaining the assault on habeas corpus re boat arrival asylum seekers.
Why so persistent?
Because once you disenfranchise one group the rest are open to attack also, as with Cameron’s awful social policies against the “undeserving poor” of all races in Britain and the horrific nostrums of the T partiers stateside, resistance becomes futile, as the state sanctioned attacks on the Occupy movement demonstrate in the most recent instance.
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Thanks, Richard, Jan and Paul for your comments. You all make very good points. Jan, I am indeed seeing the way in which life is framed as a struggle to try to stop people from having time to think or act here in the US, although I remain hopeful that the movement of people questioning the status quo will only grow bigger in 2012.
And Paul, your comments re: the UK made me relieved to have a break from the rage I’ve felt since Cameron and his cronies stole the country and began their assault on the state back in May 2010. I’m in New York, heading to Washington D.C. this afternoon.
Christine Casner wrote:
Great article, Andy. Shared. My very Best Wishes to you while you are in America!! Peace, Chris ♥
Tom Krohmer wrote:
Andy Worthington >>> This coming Wednesday, January 11th in Los Angeles, CA, there will be a Rally on the 10th year of Guantanamo Bay opening to shut down Guantanamo Bay held by Interfaith Communities United for Justice and Peace.
Thanks, Chris, for the good wishes. A pity our paths are not crossing on this trip …
And Tom, thanks for that notification. As ever, it’s important to remember those held in solitary confinement in US domestic prisons, sometimes for decades, in circumstances that clearly constitute torture.
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