I wrote the following article for the “Close Guantánamo” website, which I established in January with US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.
This week, in its “Room for Debate” series, the New York Times invited six people to debate the question, “Time to End Military Tribunals?” and also to comment on whether, in his second term, President Obama should “finally close Guantánamo.”
On the one, hand, of course, there were some powerful arguments made for President Obama to drop the military commissions — especially after the recent ruling by the D.C. Circuit Court, quashing one of the only convictions in the system’s troubled history, that of Salim Hamdan — and finally fulfill his failed promise to close Guantánamo, and it was important to have these arguments made in the pages of the Times.
In “A Failed Experiment,” Andrea Prasow of Human Rights Watch stated bluntly, “The Guantánamo experiment has failed,” and added, “Those implicated in serious crimes should be prosecuted, but in time-tested judicial systems. If the president is serious about closing Guantánamo, he needs to work with Congress to lift the restrictions on transferring detainees. If Congress refuses, Obama should use his veto”– included in last year’s National Defense Authorization Act, which Tom Wilner wrote about here.
Laura K. Donohue, a law professor at Georgetown University and the acting director of the Center on National Security and the Law, followed up on this in “We the People Should Judge,” arguing that a crucial difference between the commissions and federal courts is that the latter allow the American people to be involved as jurors, and also provide a vital check on what the Founding Fathers recognized as “the dangers of placing all legislative, executive and judicial power in the same hands.”
In “Shut Down the Whole Thing,” Vince Warren, the executive director of the Center for Constitutional Rights, stated, “Guantánamo was an international symbol of lawlessness and abuse in 2008 when the newly elected President Obama promised to close it, and remains so today.” He called the commissions “an ad hoc second-class system of justice, where defendants have no right to know their accusers or even see the evidence against them and where hearsay is admissible,” and noted that President Obama “would do well to shut the whole misbegotten project down.”
However, he also recognized that federal courts “are not immune to the politics of the day,” and the problems with a system in which “[m]ost federal terrorism prosecutions involve the vague and slippery charge of material support,” in which, for Muslims, the conviction rate is, shockingly, almost 100 percent. This situation, then, would need addressing urgently if the commissions were to be shut down.
Unfortunately, in its desire for objectivity and a balanced debate — which, to be blunt, is unwise when dealing with the legacy of an administration that went out of its way to show disdain for domestic and international laws and treaties — the Times also called on three columnists to provide opposing views: Glenn M. Sulmasy, a law professor at the US Coast Guard Academy, Eric Posner, a professor at the University of Chicago Law School, and, disturbingly, Marc Thiessen, a former speech writer for George W. Bush and Donald Rumsfeld, and an unreformed advocate of the lawlessness of the Bush years.
Sulmasy argued for the need to create a new trial system in his article, “A Hybrid Court for a Hybrid Warrior,” and Posner, in “Foreign Terrorists Are Different,” called for the President to keep the commissions, although he recognized problems, noting, “Indefinite detention is increasingly difficult to sustain morally and politically, and this seems to have led the Obama administration to prefer drone strikes to captures, a questionable policy from an operational perspective, as it deprives the United States of intelligence, to say nothing of the moral issues.” He hoped that “some better system can be devised, where detainees are given stronger rights, foreign observers play a role, the standards for detention are strengthened or the period of detention is limited.”
Both of these men can at least justify their positions, whereas Thiessen, while complaining about drone strikes in his article, “No Intelligence Without Detention,” only did so to complain that the Obama administration “has prioritized killing senior terrorist leaders over taking them alive for questioning.” Thiessen claimed, “We need to question live terrorists who can tell us their plots and plans. And that means we need somewhere to take them.” On this occasion, he stopped short of explaining that he also believes that torture should then be used on these captives, but he has not always been so reticent.
Here at “Close Guantánamo,” we believe that it is important to present both sides of the story, but we also believe that the fabled “objectivity” of the liberal media has served to obscure some fundamental truths that can be swept away or ignored through presenting a supposedly “balanced” viewpoint.
The truth is that Guantánamo has been a prison mired in black propaganda from the beginning, and that those defending it need no encouragement for their unprincipled position.
The truth is that 86 of the 166 men still held at Guantánamo were cleared for release in 2009 by President Obama’s interagency Guantánamo Review Task Force — and that many of these men were also cleared for release under President Bush.
The truth is that they are still held because of failures on the part of the administration, and obstruction by Congress and the courts, and that these obstacles need to be removed so that these men can be freed, and this needs to happen as soon as possible.
Then we can look at the other 80 men, and decide which kind of trials would be best for those the Task Force recommended to be put on trial (currently around 30 of those still held), and also decide how many of those men cannot now be put on trial because of the D.C. Circuit Court’s recent ruling, overturning Salim Hamdan’s conviction for providing material support to terrorism.
When the 86 cleared prisoners are freed, we can also ask why it is considered acceptable that the rest of the remaining 80 men — 46 in total — are being detained indefinitely without charge or trial on the basis that the supposed evidence against them cannot be used in a court. That means that it is not evidence, but some unreliable ragbag of information obtained through torture and coercion, and involving multiple layers of hearsay.
First though, the 86 men cleared for release need to be released.
To create the pressure to achieve that, people need to be told why Guantánamo remains an experiment that should never have been started, and one that needs bringing to an end immediately, and they also need to be told that, on indefinite detention, as on torture, there is no “Room for Debate.”
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, Flickr (my photos) and YouTube. Also see my definitive Guantánamo prisoner list, updated in April 2012, “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 please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.
Nice to see you not backing down in continuing your work.
But also, if I donate or help you out in any way, am I violating the Patriot Act or NDAA here? Both are obviously ridiculous (being written in the broadest legal sense, and with retroactive protection for everyone from Bush on). Just like yourself and Chris Hedges, I do what I can thru various avenues to speak out (and protect myself online).
Good to hear from you, Tom, and no, there’s no legal basis for there being a problem providing me with any kind of support, although obviously the Patriot Act and the NDAA were designed to stifle even the merest thought of what could be termed dissent.
On Facebook, Lilia Patterson wrote:
One of Obama’s promises pre-election before he became president for the first time was to close Guantanamo Bay. All ‘promises’ made before election have since now fallen by the way-side. This means that he is not in control, and now he is in office, he just does what he is told. Please note both the Clintons and the Cheneys are share-holders in Halliburton who profitted from the building contract of Guantanamo Bay, from the start.
Pamela Lynne Kemp wrote:
Andy thank you for your vigilance in writing about this issue. Most people seemed to have forgotten about it long ago
Thanks, Lilia and Pamela. Yes, President Obama’s promises melted away almost as soon as the ink was dry on his executive orders promising to close Guantanamo and banning the use of torture, Lilia. All we really got was the release of four previously classified torture memos, before the entire military-industrial-intelligence-lawmaker complex shut down anything else that marked a significant break with Bush’s crimes.
And Pamela, that, of course, is why I continue to write about Guantanamo and to campaign for the men still held, who are scapegoats for the US government’s failures and crimes. That’s true of all of them, of course, even the handful accused of genuine terrorist offenses, but it’s especially true when 86 of the remaining 166 men have been cleared for release, and 46 others are being held indefinitely without charge or trial – a disgraceful situation that is not made any more palatable because President Obama tried to shore it up with another executive order.
The campaign to close Guantanamo continues!
The Clintons have shares in Halliburton? Didn’t know that. I do know that others such as John Kerry and Diane Feinstein are two of the richest Senators. A large part of their portfolios are in defense stocks.
I didn’t know that either, Tom – and I can’t find a source for the claim. Bill Clinton certainly put work Halliburton’s way when he was President, but that’s not the same thing, obviously.
Neil Mckenna wrote:
Why is there even such a camp on Cuban soil? I just got this from Wikipedia:
‘The United States assumed territorial control over the southern portion of Guantánamo Bay under the 1903 Cuban-American Treaty, which granted it a perpetual lease of the area. The United States, by virtue of its complete jurisdiction and control, maintains “de facto” sovereignty over this territory, while Cuba retained ultimate sovereignty over the territory. The current government of Cuba regards the U.S. presence in Guantánamo Bay as illegal and insists the Cuban-American Treaty was obtained by threat of force in violation of international law. It is the home of the Guantanamo Bay detention camp, which is governed by the United States.’
Neil Mckenna wrote:
Diego Garcia comes to mind, again …
Lilia Patterson wrote:
Neil, exactly, it means that the torture does not take place on US soil, that’s why, and the only jurisdiction that the facility operates under is under military law. That’s what I’d imagine.
Neil Mckenna wrote:
The extraordinary rendition black hole, yes. And it is terrifying to think that Guantanamo is only one piece in that global jigsaw created once the oxymoronically named ‘War On Terror’ was re-declared.
Lilia Patterson wrote:
The only reason in real terms that Hillary and Obama have been saying how much they care about the ‘human rights’ of the people across the Middle East, during the Arab Spring, is to cover up their own complicity in the rendition puzzle, of which the various Middle Eastern dictators all played a part. The Assad regime CIA torture prisons for example, have been described as the biggest ‘threat’ used in the prisons of Guantanamo Bay, Bagram and also Abu Ghraib. Therefore when people say that the US and Western powers support the uprisings in Egypt, or Syria, in real terms, this is not so, because in real terms, the actions of the US and Western intelligence agencies, sending people to get tortured in these countries, also mean that they are jointly responsible for propping up regimes that have tortured and murdered their own people leading to the uprisings from the start. Therefore the words of politicians in real terms, are simply in order to ‘stage-manage’ the inevitable, to cover up their own complicity for propping up regimes who used illegal torture on their behalf, from the start.
Neil Mckenna wrote:
Rendition to Syria? I hadn’t heard that …
When I posted this on Facebook, I wrote:
Nearly 11 years after the hellhole that is Guantanamo opened, and in response to the reelection of Barack Obama, the New York Times thinks it appropriate to have a debate about whether to close Guantanamo and whether military commissions are a valid trial system – and even invites Marc Thiessen to contribute. No debate! The damned place must be closed! Free the 86 cleared prisoners now!
Sylvia Martin wrote:
I agree. No debate–just do it.
Thanks, Neil, and thanks again, Lilia. Interesting discussion.
Choosing Guantanamo was certainly because it was presumed to be beyond the reach of the US courts, so that people could be held without rights – and prisoners without rights, of course, are designated as such so that they can be abused, or, as we know with the Bush administration, tortured.
And Neil, for a detailed analysis of what was known about renditions to other countries, have a look at this section of a report that I wrote for the UN back in 2009: http://www.andyworthington.co.uk/2010/06/17/un-secret-detention-report-part-three-proxy-detention-other-countries-complicity-and-obamas-record/
Thanks, Sylvia. If only everyone would be so direct!
Fact that you might not know. A reputable mental health source once told me that 3 out of 10 people in the States have some untreated form of PTSD. Assuming that’s true, the next question would be how come vets get all of the attention when it comes to this? No disrespect to them. However, this does happen to civilians as well.
Interesting, Tom, but I wouldn’t be able to venture an answer without knowing the origins of what non-veterans were suffering PTSD as a result of.
This can come from a variety of problems:
Various types of abuse (physical, mental and verbal)
Witnessing or being a victim of a violent crime
Having a chronic or terminal illness and not being able to get treatment (thru no fault of your own)
First responders. Some 9/11 first responders still have chronic illnesses, no necessary radio system, and untreated various forms of PTSD.
Unfortunately, because we live in a 24/7 instant soundbite society, unless a case fits into a nice and neat story, most of the MSM want nothing to do with that. That’s what many of my trauma survivor friends tell me.
Thanks, Tom. A good summary.
Have you done any work w/progressive Democrats here on closing Guantanemo? If yes, what kind of response have you had up until now?
The answer would probably have to be no, Tom, sadly. Before 2008, yes, but since Obama got elected there’s no rocking of the boat allowed. This needs to change in his second term, when he, in particular, has a legacy to think about, but the Democratic Party, of course, will be looking to win another election, and still won’t want to address an issue that not enough people care about. The vicious circle, reinforced by a complacent or corrupt media, is that political parties play to the lowest common denominator, and that can be very low indeed.
That said, you’ve given me some ideas for new avenues to pursue!
As you do, here’s one view to consider. In my dealings with various progressives, almost every time when push comes to shove, you’re right. They obediently fall into line. Bob Woodward in his new book can say that Pelosi and other key people privately think Obama is a really boring speaker (nice soundbite to sell copies). Yet in public we’re all behind you. Another point is that many Democrats have been trying to essentially hijack the Occupy movement. They saw the initial momentum and said, oh yeah, we’re behind you. When acutally what they were doing was using it as a campaign donation source and to hype their other groups (Van Jones being one example).
If you do contact Congresspeople, two of your best leads could be Barbara Lee and Bernie Sanders. As for others (Kucinich being one), IMO he says one thing. Then again, when the pressure’s on he keeps his mouth shut and goes along w/Obama and Pelosi. I’ve seen him do that on many issues. Which in one sense is sad. Then again, considering the current political system it’s not surprising.
Thanks, Tom. Good suggestions and observations!
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