Some Progress on Guantánamo: The Envoy, the Habeas Case and the Periodic Reviews

13.10.13

I wrote the following article — under the heading, “Progress on Guantánamo,” for the “Close Guantánamo” website, which I established in January 2012 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.

Progress towards closing the prison at Guantánamo Bay — or even getting men freed who have been cleared for release by a government task force — has become such a slow and difficult process that any positive developments must be greeted with a sense of relief that at least something is being done.

In the last week, three developments that offer some hope have taken place — the appointment of a “Special Envoy for Guantánamo closure” in the Pentagon; the decision by the Justice Department not to contest the habeas corpus petition of a severally mentally ill prisoner; and the start of a review process for the majority of the 80 prisoners still held at Guantánamo who are not amongst the 84 prisoners who were cleared for release by President Obama’s inter-agency Guantánamo Review Task Force in January 2010.

The fact that 84 prisoners who were cleared for release nearly four years ago are still held shows the extent to which progress towards closing Guantánamo has almost ground to a halt.

The 84 men are still held in part because Congress has raised obstacles to the release of prisoners, prohibiting them from being moved to the US mainland for any reason (even to face trials), requiring the administration to certify that any prisoners it intends to release will be unable to engage in terrorist activities against the US, and prohibiting the release of prisoners to any country where there has been even a single reported incident of recidivism — of prisoners allegedly “returning to the battlefield” — according to reports issued over the last four years by the Pentagon and the Director of National Intelligence, which, to be frank, are extremely unreliable.

However, President Obama also bears responsibility, in particular for failing to use a waiver provision in the legislation imposed by Congress to release prisoners if he and the Secretary of Defense regard it as being in America’s national interests — as it clearly is. To quote the president himself, in remarks he made at a press conference in April, “I think it is critical for us to understand that Guantánamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. It lessens cooperation with our allies on counter-terrorism efforts. It is a recruitment tool for extremists. It needs to be closed.”

In May, in a major speech on national security issues, provoked by the prison-wide hunger strike that the prisoners had embarked upon to raise awareness of their plight, President Obama described Guantánamo as “a facility that should have never have been opened,” and also pointed out that the prison “has become a symbol around the world for an America that flouts the rule of law.” He also stated that he would appoint two senior envoys at the State Department and Defense Department “whose sole responsibility will be to achieve the transfer of detainees to third countries.”

These are fine words, but until last week all that had been achieved in the last four months was the appointment of one envoy, Clifford Sloan at the State Department, and the release of just two cleared prisoners.

Last week, one promising new development was defense secretary Chuck Hagel’s announcement of the appointment of Paul M. Lewis, who has served as General Counsel for the House Armed Services Committee, and the director of the Office of Legislative Counsel in the Office of the General Counsel of the Department of Defense, as the “Special Envoy for Guantánamo closure” in the Pentagon. As a press release explained, “This announcement reflects the Department’s commitment to implementing the President’s directive to close the detention facility at Guantánamo Bay.”

The press release added, “Special Envoy Lewis brings a wealth of experience from his previous position as the Minority General Counsel of the House Armed Services Committee where he oversaw Guantánamo related issues.” It was also noted that Lewis “will oversee efforts to transfer third country nationals currently held by the United States in Afghanistan” — at Bagram, where the US is still holding around 67 foreign nationals, despite having handed over the majority of its prisoners to Afghan control in March this year.

Justice Department decides not to contest release of mentally ill prisoner

In the second development, lawyers at the Justice Department refused to contest the habeas corpus petition of Ibrahim Idris, a Sudanese prisoner who is severely mentally ill, and has been throughout the nearly 12 years of his detention.

In July, as I explained in an article entitled, “The Schizophrenic in Guantánamo Whose Lawyers Are Seeking to Have Him Sent Home,” Jennifer Cowan, Idris’ attorney, “asked the court to release her client because he is so mentally ill and so morbidly obese that he cannot be regarded as a threat.” As I added, “In Hamdi v. Rumsfeld, in June 2004, the Supreme Court stated that the law used to hold prisoners at Guantánamo, the Authorization for Use of Military Force (AUMF), passed the week after the 9/11 attacks, only allowed the government to hold a prisoner ‘for the purpose of preventing him from returning to the battlefield.’”

As Jennifer Cowan described the situation in her submission to Senior District Judge Royce C. Lamberth:

Petitioner’s long-­term severe mental illness and physical illnesses make it virtually impossible for him to engage in hostilities were he to be released, and both domestic law and international law of war explicitly state that if a detainee is so ill that he cannot return to the battlefield, he should be repatriated. When interpreted in accordance with domestic law and the principles of international law, the Authorization for the Use of Military Force (“AUMF”) does not permit the continued detention of Mr. Idris.

In September 2012, Idris was included on a list of 55 prisoners cleared for release by the Guantánamo Review Task Force, which was made publicly available by the Justice Department in a court case. This was in marked contrast to the position taken by the authorities at Guantánamo in his Detainee Assessment Brief (DAB), the classified military file released by WikiLeaks in 2011. Idris’ file was compiled in April 2008, and, as I explained in my article in July, it “ought to be a source of shame to the authorities.” In it, the authorities claimed, “Detainee has resisted cooperation with interrogators and remains largely unexploited,” adding, “He has coached other JTF-GTMO detainees to use resistance techniques while in US custody.” As Carol Rosenberg explained in the Miami Herald, far from coaching others, “his fellow prisoners don’t want him around,” because “he behaves bizarrely — wears his underwear on his head, whispers to himself, is delusional.”

The Justice Department’s decision about Idris was issued on October 2, and in it the lawyers stated:

In late 2009, the Executive Branch decided, pursuant to the recommendation of the Guantánamo Review Task Force, that the United States could relinquish custody of Petitioner with certain assurances from a receiving country, including assurances related to the availability of medical care in the receiving country … Based on consideration of all relevant information specific to the circumstances of Petitioner, including that decision, the Executive Branch has determined that it will no longer contest Petitioner’s Petition for Writ of Habeas Corpus.

The Justice Department lawyers added that they were “withdrawing their reliance upon their amended factual return, filed on October 22, 2008,” which, essentially, rehashed the implausible story contained in Idris’ Detainee Assessment Brief.

In a two-line order issued on October 4, Judge Lamberth ordered Idris’ release. His order stated, “Petitioner’s unopposed Petition for Writ of Habeas Corpus is hereby granted. The United States shall take all necessary and appropriate diplomatic steps to facilitate Petitioner’s release.”

What is particularly noteworthy about the Justice Department’s decision in the case of Ibrahim Idris is that it marks the first time that the Civil Division lawyers — those responsible for dealing with the prisoners’ habeas petitions — have backed down. In place since the days of George W. Bush, the lawyers have vigorously contested every petition as though the fate of the United States depended on it. This may make sense given the adversarial nature of the law, but what doesn’t make sense is that petitions have been fought even when the men in question have been cleared for release by President Obama’s Guantánamo Review Task Force.

I am unable to explain why there has been no cross-referencing of cases between the task force (which involved officials from the Justice Department) and the Civil Division of the DoJ, or why Attorney General Eric Holder has maintained the status quo, and no other senior official, up to and including the President, has acted to address this troubling lack of joined-up thinking. However, it is to be hoped that it signals the possibility for further successful challenges by prisoners who are ill — as well as opening up the possibility for cleared prisoners to call for their release through the habeas process. As the Associated Press reported this week, lawyers for another severely ill prisoner, Tariq al-Sawah (aka Tarek El-Sawah), an Egyptian, are also seeking his release, and lawyers for Saifullah Paracha, a Pakistani who is very ill with cardiac problems, also spoke to the AP about their client’s case. Noticeably, neither man was cleared for release by the task force, but it is clear their illnesses are not something that the authorities can endlessly ignore.

Periodic Review Boards begin for 71 prisoners not cleared for release

The third recent development centres on the Pentagon’s announcement, on October 9, that the Periodic Review Board (PRB) process is “underway.” This process, a press release noted, “was established to review whether continued detention of certain detainees held at Guantánamo Bay remains necessary to protect against a continuing significant threat to US national security.”

The start of this process is long overdue, as 46 of the remaining 164 prisoners were designated for indefinite detention by President Obama in an executive order in March 2011, a depressing announcement that was only made faintly palatable by the promise that they would receive periodic reviews of their cases. The men had been recommended for indefinite detention by the Guantánamo Review Task Force, which had concluded that they were too dangerous to release, even though insufficient evidence existed to put them on trial, and the task force’s shameful conclusions were then embraced by the president.

The problem, of course, is that not having evidence that can be used in a court — even in Guantánamo’s military commissions — means that the information does not rise to the level of evidence, and is either tainted by torture, or is the kind of hearsay that permeates the supposed evidence, as demonstrated in the Detainee Assessment Briefs released by WikiLeaks, which are full of dubious statements made by prisoners who, if not tortured, were subjected to other forms of abuse, or were bribed with better living conditions, or were mentally ill, or simply gave up resisting the interrogators and told them what they wanted to hear.

The PRB process is better than endless detention without review, although it remains to be seen how much the dubious information used to justify the detention of the majority of these 71 men is tested. The Pentagon noted that, unlike the Combatant Status Review Tribunals and Administrative Review Boards run by the military under George W, Bush, the PRBs include “a cross-section of the national security community,” as the decision-making panel “consists of one senior official from the Departments of Defense, Homeland Security, Justice, and State; the Joint Staff; and the Office of the Director of National Intelligence.”

Nevertheless, the process does not necessarily look demonstrably different from the CSRTs and ARBs, in which the prisoners did not have access to the classified evidence against them, and were represented not by a lawyer, but by a “personal representative” from the military, who was at liberty to decide the extent to which they were interested in their client’s case.

As the Pentagon press release notes, “In every PRB proceeding, the detainee will be provided with a uniformed military officer (referred to as a personal representative) to assist the detainee during the PRB process.” The press release also states:

[D]etainees will be provided an unclassified written summary of the information considered by the PRB and will be permitted to respond with statements written by themselves and witnesses. Detainees will also be afforded the opportunity to appear before the PRB via video or telephone conference. Detainees may request the presentation of testimony at the hearing by witnesses who are reasonably available and willing to offer relevant and material information regarding whether continued law of war detention is warranted.

In addition, it is noted that the personal representatives “will have the security clearance necessary to review the information provided to the Board and will be responsible for advocating on behalf of the detainee, challenging the government’s information, and introducing information on behalf of the detainee,” although no indication is given about the impetus for the personal representatives to do a good job, or what access to information they will have if they decide to represent their clients to the best of their ability.

Noticeably, prisoners “will also have the ability to obtain private counsel,” so long as it is “at no expense to the government,” to assist them in the review process.

It is also noted that both personal representatives and private lawyers “possessing an appropriate security clearance” will “receive full access to the information considered by the PRB, except in the rare instances where doing so would put the national security at risk.” This is presumably an improvement on the CSRTs and ARBs, for prisoners who already have legal representation, as the majority of the prisoners do, but it remains to be seen if the decision-making panels will be interested in revising the cautious and in many cases completely erroneous recommendations made by the Guantánamo Review Task Force nearly four years ago.

It is to be hoped so, as these recommendations erred severely on the side of caution.

In conclusion, reviewing the developments of the last week, we hope not only to see a review process that robustly questions the supposed evidence eased to justify these 71 men, but also to see movement on the release of the 84 prisoners cleared for release, and further welcome decisions not to contest habeas corpus petitions by the Justice Department. It is time for major steps to be taken that advance the administration’s stated aim of closing the prison at Guantánamo Bay.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here – or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the four-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

14 Responses

  1. Andy Worthington says...

    When I posted a link to the version published on CloseGuantanamo.org yesterday, I wrote:

    Here’s my analysis of the latest developments regarding #Guantanamo – the appointment of a new envoy for dealing with the prison’s closure, the decision by the Justice Department not to contest the release of a severely mentally ill prisoner, and the announcement that periodic reviews will be starting soon for 71 prisoners not cleared for release. This is definitely progress, but much, much more remains to be done.

  2. Andy Worthington says...

    Mark William Barnes wrote:

    Keep it up

  3. Andy Worthington says...

    Thanks, Mark. Good to hear from you, and thanks for the encouragement.

  4. Andy Worthington says...

    Min Bee wrote:

    Here’s to HOPE ♥

  5. Andy Worthington says...

    Yes, there is at least progress of sorts, Min, and those of us campaigning need to be able to capitalize on these developments.

  6. Andy Worthington says...

    Chris Cook wrote:

    I was going to repost, but the article doesn’t seem to want to be…?

  7. Andy Worthington says...

    I don’t know what of any issue preventing reposting, Chris. There shouldn’t be. Everything is meant to be sharable and, uh, repostable.

  8. Andy Worthington says...

    Christine Casner wrote:

    As always, thank you, Andy. Peace. ♥

  9. Andy Worthington says...

    Pauline Kiernan wrote:

    sharing

  10. Andy Worthington says...

    Thanks, Chris. Very good to hear from you, and thanks as ever for sharing, Pauline.

  11. arcticredriver says...

    Andy, congratulations on your enormous diligence on following and reporting these heartbreaking stories.

    I agree that the DoJ choosing not to appeal Idris’s release order is good news.

    Andy will you forgive me for repeating something I am sure you and I and many of your readers probably agree on?

    The DoJ’s exception in Idris’s case is apparently due to their agreement that his mental and physical health issues mean that he doesn’t represent a threat.

    However, why should top a secret assessment that an individual might be a threat be considered a valid justification for holding an individual indefinitely, without charge? The Geneva Convention allows for something exceptional. It allows signatories to hold certain citizens of other countries without charge. This exception allowed to signatories only applies to individuals who meet the Geneva Conventions’ definition of “combatant”.

    Well, it was the official position of the Bush Presidency that no-one captured in the Afghanistan-Pakistan region was entitled to the protections of the Geneva Convention. The Obama administration never reversed this position.

    The way I see it, it was a position that cuts two ways — while the Bush Presidency may have felt free to use torture and other extreme interrogation techniques, they no longer had the exception the Geneva Convention provides signatories for holding individuals without charge.

    Who says an assessment that someone — who has never been convicted of a crime — should be held indefinitely because he may be a threat at some time in the future.
    (1) Most of the captives not only haven’t been convicted, they haven’t been charged;
    (2) The assessment that these individual might be a threat were made in secret; based on highly unreliable “evidence”l
    (3) Guantanamo guards regularly delivered the wrong captive to medical appointments and to their appointments with their lawyers. I think this was a side effect of Guantanamo staff continuing to make unofficial use of the sleep deprivation technique known as the “frequent flyer program”, off the books, after authorization to use it had been rolled back. A predictable unintended consequence of this unofficial use of this torture technique is that the guards could no longer tell who was who. I believe the result was 5 to 10 percent of the time interrogators were interrogating someone other than who they thought they were interrogating. There is something you noticed almost all the Guantanamo assessments said. They almost all said, vaguely, that captives shouldn’t be trusted, because their answers had been inconsistent, or evasive. Inconsistent answers are what one should expect when you ask one captive the questions intended for another captive.

    Andy, I have some news. Commander Gordon had an op-ed published by Fox News.
    http://www.foxnews.com/opinion/2013/10/14/al-qaeda-kingpin-abu-anas-al-libi-belongs-at-guantanamo-not-in-new-york/

    In that op-ed he asserted that Abu Anas al-Libi should be sent to Guantanamo:


    Instead of whisking al-Libi to Guantanamo where he could be interrogated by the military and CIA for as long as it takes to get actionable intelligence – and then try him by military commission as an enemy combatant, Mr. Obama first decided to hold him aboard the amphibious transport ship USS San Antonio, and later try him in a New York federal courtroom.

    He went on to denounce human rights activists, writing:


    They conveniently ignore the fact that detainees collectively killed countless thousands of civilians worldwide, including on Sept. 11, 2001, in the mass-casualty bombings at our East African Embassies, at a Bali nightclub, and the Jakarta Marriott, and during Afghanistan’s civil war.
    And with the exception of isolated incidents impacting a grand total of 1% of the total detainee population, the rest have been treated with kid gloves.

    Of course his “1%” assertion is nonsense. It is true that there are a small handful of about a dozen captives who officials have acknowledged were tortured. But every single captive held in Bagram or Kandahar was “softened up” by being hooded, having their wrists shackled to the ceiling, and being subjected to brutal beatings. Even by John Yoo’s very narrow definition of torture, this was torture, because Yoo said pain equivalent to that of “death or organ failure” was torture — and captives actually died from the use of this technique. One can’t get closer to the pain equivalent to death than actually dying.

    Further threatening to use torture against a captive is alos a serious breach of international law, and we know from Ibrahim al Zeidan’s testimony that interrogators routinely bragged about the (supposedly) secret torture of Abu Zubahdah.

  12. Andy Worthington says...

    Thanks, as ever, for the perceptive comments, arcticredriver.
    I think you are exposing the thinness of the authority for imprisoning men at Guantanamo, which looks thinner with each passing year. It’s all supposedly down to the AUMF, of course, and the Supreme Court’s endorsement that the AUMF authorizes detention until the end of hostilities, but I think on reflection it appears that the US is skating on non-existent ice when it comes to justifying the detentions at Guantanamo. Hopefully the withdrawal of troops for Afghanistan next year will help to expose this, but underlying everything is an arrogance that seems to say that America can do what it wants without having to justify that to anyone else at all under any circumstances, an arrogance led by the Republicans (see their shutdown as a coup against the democratic process that elected the “wrong” president), but apparently largely embraced by Democrats as well.

  13. arcticredriver says...

    With regard to the election of the wrong President — there is a Professor of Computer Science, in Iowa, name Doug Jones, who maintains a musuem devoted to the punch card. In the days before personal computers and computer terminals Data Processing department would run one big computer that received most of its input through punch cards.

    Officials sat and reviewed the punch cards from various counties in Florida. The result of the election hung on whether cards with “pregnant chad” or “hanging chad” were interpreted as votes for Al Gore.

    This Professor, possibly the world’s leading expert in punch card technology, had one of the Votomatic punch card machines delivered to his lab.

    The ballots the Votomatic machines used were standard sized 80 column punch cards. They had pre-scored perforations down every column. The ballots would slide into place for each voter, who could poke out a whole for their preferred candidate.

    However, what the Professor found was something those familiar with the Votomatics already knew. When laying out the ballots there were certain holes that were supposed to be excluded. There were support rods that lay under certain ballot positions. The chad, or confetti, would get jammed up under those support rods, the first hundred ballots that contained votes for the candidate whose hole lay above those rods could have their chad poked out. But after that earlier chads would cause some chads to be only partly poked out — forming “hanging chads”. Later votes wouldn’t poke out even part of the perforation — leaving a crater, or “pregnant chad”.

    So every single hanging chad or pregnant chad should have counted as a vote for Gore.

    http://en.citizendium.org/wiki/Hanging_chad

    http://homepage.cs.uiowa.edu/~jones/cards/chad.html

  14. Andy Worthington says...

    Thanks, arcticredriver. It’s like ancient history, recalling the election that Bush stole in 2000. Do you recall that at his inauguration, in the rain, tens of thousands of protestors turned out, and people threw eggs?
    My friend Brad Friedman has spent a lot of time studying election fraud, which nowadays, of course, involves electronic voting machines. I recommend his site for those interested in this permanently under-reported story: http://www.bradblog.com/
    Of course, the issue with the Republicans and the shutdown is different, but just as undermining of the notion of a fair democratic process. It beggars belief that a minority party can slam the brakes on America’s economy and humiliate the country internationally, as the Republicans have done, and they deserve to lose the next election as a result. Unfortunately, America is not safe in the Democrats’ hands either, but that’s another matter.
    Interestingly, here’s a Chinese perspective on the shutdown, revealing the exasperation of the Chinese leadership. This could be very damaging indeed for America in the long term: http://www.kforcegov.com/Services/IS/NightWatch/NightWatch_13000217.aspx

    Here’s the whole section:

    China-US: The official Chinese news agency Xinhua published today a signed commentary about the failure of “Pax Americana.” Excerpts follow.

    “As U.S. politicians of both political parties are still shuffling back and forth between the White House and the Capitol Hill without striking a viable deal to bring normality to the body politic they brag about, it is perhaps a good time for the befuddled world to start considering building a de-Americanized world.”

    “With its seemingly unrivaled economic and military might, the United States has declared that it has vital national interests to protect in nearly every corner of the globe, and been habituated to meddling in the business of other countries and regions far away from its shores”

    “Meanwhile, the U.S. government has gone to all lengths to appear before the world as the one that claims the moral high ground, yet covertly doing things that are as audacious as torturing prisoners of war, slaying civilians in drone attacks, and spying on world leaders”.

    “Such alarming days when the destinies of others are in the hands of a hypocritical nation have to be terminated, and a new world order should be put in place, according to which all nations, big or small, poor or rich, can have their key interests respected and protected on an equal footing.

    For starters, all nations need to hew to the basic principles of the international law, including respect for sovereignty, and keeping hands off domestic affairs of others.”

    “Furthermore, the authority of the United Nations in handling global hotspot issues has to be recognized. That means no one has the right to wage any form of military action against others without a UN mandate.”

    “Apart from that, the world’s financial system also has to embrace some substantial reforms.”

    “What may also be included as a key part of an effective reform is the introduction of a new international reserve currency that is to be created to replace the dominant U.S. dollar, so that the international community could permanently stay away from the spillover of the intensifying domestic political turmoil in the United States.”

    “Of course, the purpose of promoting these changes is not to completely toss the United States aside, which is also impossible. Rather, it is to encourage Washington to play a much more constructive role in addressing global affairs.”

    “And among all options, it is suggested that the beltway politicians first begin with ending the pernicious impasse.”

    Comment: A signed commentary published by Xinhua always means that some powerful political faction in Beijing holds the opinions expressed. Alternatively, it can mean that the entire Chinese leadership holds the opinions expressed and is seeking to determine their resonance around the world. This commentary appears to be in the latter case. The article has gone viral.

    While the Chinese leadership has often criticized the wisdom and self-interests of US policy, it has hesitated to call for a reconstruction of the global system of nations. But that is what this commentary implies. It includes a point-by-point refutation of the pillars of US policy in the past five years.

    It accuses the US of using the sobriquet of “responsibility to protect” to advance US aspirations for imperialism. The author accuses the US of using the claim of moral high ground to justify illegal detentions, summary executions by drones and torture of prisoners. The author says the so-called “pax Americana” has been the subterfuge to foment instability, American meddling, the start of wars and world-wide chaos justified by lies.

    No student of Chinese leadership can doubt that the views expressed in the commentary represent the views of the leadership. Particularly galling is the uncertainty of a return on investment from the more than $3 trillion in US bonds that the Chinese hold. Capitalist systems are not supposed to aggravate uncertainty that leads to loss of value even if default is averted. The Chinese resent this byproduct of a democratic system.

    This is the first time the Chinese have dared to denounce the US-managed international system, to label American policies as failures and to call openly for a restructuring of global politics and economics by reducing the role of the United States and the role of the US dollar as the world reserve medium of exchange and measure of value.

    The Chinese leaders know that no safer investment exists than the US economy. However, they resent that the value of their investments depends on the vagaries of US politics. They would like to know whether other national leaders share their views and hope to stimulate a conversation about alternative models.

    They make clear that their aim is to topple the US from its position of leadership, which they judge has become toxic for world business and promotes political instability.

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