Fine words, indeed, although the Times itself has, over the last ten years, in common with most, if not all of the American establishment, failed to thoroughly and repeatedly condemn efforts, first by George W. Bush, and then by the Obama administration, to hold military trials for the mixed bag of soldiers and terrorist suspects held at Guantánamo.

This is where the rot set in, for which everyone in a position of authority, whether in politics or the media, bears responsibility. However, the failure to stem the poison flowing from this wound to the established order — in which terrorists are criminals, and soldiers are not terrorists — has led to an outrageous situation in which lawmakers (both Republicans and Democrats) have decided that the aberrations introduced by the Bush administration, which should, by now, have been thoroughly discredited, were, instead, just the first steps in the creation of an all-encompassing military state.

In this dystopian future, coming to America within months, if lawmakers are successful, anyone regarded as a terrorist must be held in military detention, where, it is planned, they may be subjected to abuse with impunity, and, if required, held forever without a trial and without any rights.

This was the aberration initially dreamt up by Bush and his close advisors for their “War on Terror,” and implemented at Guantánamo, throughout the war zones in Afghanistan and Iraq, and around the world in a network of secret prisons, but although it should have died as an enduring concept when President Obama took office, it took less than a year for supporters of military detention for terror suspects to start proposing its continuation and expansion, suggesting that no foreign terror suspect should ever receive a federal court trial.

None of the cheerleaders for military detention cared that, throughout the eight years of the Bush administration, the detention program in the “War on Terror” was actually a failure as well as an aberration, which had struggled to try just three men, because the correct venue for terrorist trials was in federal court, where hundreds of successful trials took place.

Instead, when, in November 2009, Attorney General Eric Holder announced a federal court trial in New York for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, the cheerleaders for military detention began mobilizing against the trial, starting a successful backlash that encouraged the administration first to freeze the proposal, and then, this year, to officially abandon it in favor of a military trial at Guantánamo.

This was a disgrace — and Eric Holder knew it, if no one else — but what no one in the administration foresaw was how Obama’s steady capitulation to pressure would embolden his critics to make ever more outrageous demands. Six weeks after the 9/11 trial announcement, when Umar Farouk Abdulmutallab, a Nigerian, was apprehended in Detroit after trying — and failing — to blow up a plane with a bomb in his underwear, the cries went up for him to be sent to Guantánamo and subjected to waterboarding, not read his Miranda rights, interrogated non-coercively by FBI agents, and tried in a federal court.

The critics did not have their way, although they did persuade the ever-compliant President to abandon releasing any more cleared Yemenis from Guantánamo, issuing a temporary moratorium that is still in place a year and a half later. This has contributed enormously to the stalemate at Guantánamo — where 171 men remain, even though 89 have been approved for transfer — and has created ill-feeling in Yemen, where the President has, effectively, judged all Yemenis as potential terrorists.

Even more crucially, the empowerment of Obama’s critics led inexorably to further attempts to dictate policy. There had been attacks on the President’s power before, through legislation preventing any prisoner from being brought to the US mainland for any reason except to face a trial, and through moves to prevent the President from closing Guantánamo by buying a prison in Illinois and moving the prisoners there. However, in December last year lawmakers went further than before.

In passages inserted into the annual defense authorization bill, lawmakers banned the use of funds to bring any Guantánamo prisoners to the US mainland — even to face trials — and specifically mentioned Khalid Sheikh Mohammed by name. They also banned the use of funds to buy a prison on the US mainland for the Guantánamo prisoners, and prevented the President from releasing any prisoner unless the defense secretary signed off on the safety of doing so. This provision was designed specifically to prevent the release of any prisoner cleared by the President ‘s own interagency Guantánamo Review Task Force to countries regarded by lawmakers as dangerous, including Afghanistan, Pakistan and Yemen.

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.

They also renewed their attacks on the President’s ability to transfer prisoners to the US mainland to face trials, his right to release prisoners to other countries without jumping through hoops, and his right to review prisoners’ ongoing detention without Congressional interference, according to his March 7, 2011 Executive Order authorizing the indefinite detention without charge or trial of 47 of the remaining Guantánamo prisoners. That order had already enraged those on the other end of the political spectrum, who recognized that it was Obama’s official extension of the heart of Bush’s own discredited detention policies.

Also included in the attacks was, for the first time, a fundamental assault on the President’s right to prosecute foreigners seized in connection with terrorist offences in federal court, also without interference from Congress.

The problems with the defense authorisation bill first came to light at the end of May, when the President’s advisors finally responded to “provisions that challenge critical Executive branch authority” by stating that, “If the final bill presented to the President includes these provisions … the President’s senior advisors would recommend a veto.”

That was important, but although the endless expansion of the “War on Terror” was dropped as an aim, as a result of concerted pressure from opponents, the Senate Armed Services Committee was fundamentally undaunted, and last month unveiled its plans for the mandatory military detention of terrorist suspects. As the New York Times explained in its dissenting editorial:

Republicans and Democrats are championing bills to further militarize the prosecution of terrorists, beyond anything even President George W. Bush proposed. They want Americans to believe the legislation will keep the country safer. In fact, these bills could end up tying the hands of FBI agents and other law enforcement officials trying to disrupt terrorist plots. They are likely to deprive prosecutors of their most powerful weapons in bringing terrorists to justice. And they come perilously close to upending the prohibition, which dates back to Reconstruction, against the military’s operating as a police force within the United States.

The Times also noted, correctly, that there was “no sign” that the White House had “tried to stop” the House of Representatives from “passing a particularly awful version of these bills, which would move most, if not all, terrorism cases from civilian courts to military tribunals,” or had “tried to stop” the Senate Armed Services Committee “from approving only a slightly better one.” The editors also had no time for complaints by Democrats on the Committee, who include Sen. Carl Levin, that “they defeated far worse proposals,” and made it clear that “President Obama must push the Democratic leadership to amend the Senate bill — and make it clear that he will veto any bill that turns over proper law enforcement functions to the military.”

While this situation continues to fester, with only the threat of a veto standing in the way of a dangerously militarized state, another development — the uproar over the administration’s proposal to try an alleged Somali terrorist, Ahmed Abdulkadir Warsame, in federal court in New York — has kept the advocates of military detention busy, even though the Warsame case actually raises a whole set of other troubling issues.

Before his arrival in New York to face a trial, Warsame had been held on a ship, in military custody, since April 19. As a result, the most troubling question ought to concern this two-month period off the books, whereas the military detention crowd has obsessed instead about how President Obama has been involved in what 23 Senators, led by John McCain and Mitch McConnell, described last week in a letter as an action that “appears to be a circumvention of the clear intent of many in Congress that terrorists captured abroad under the Authorization for Use of Military Force should not be brought into the United States for trial.”

Perhaps this will play into the hands of the Obama administration, in which federal court trials are seen as the correct venue for terrorist trials, even though Obama is himself responsible for having revived the military trials at Guantánamo in the first place, when he should have left them alone. This latest development — the letter from the 23 Senators — certainly doesn’t show lawmakers in a favourable light, as they continue, obsessively, to flog their pet topic.

If people are paying close attention, they may finally realize how deranged the advocates of military detention sound, although they should, of course, have been wary in the first place of the military being given powers that correctly belong to the law enforcement agencies, and especially of proposals that anyone accused of terrorist activities in the US must be held in military detention.

That way extreme danger lies — very possibly of the kind that led to the US “enemy combatant” Jose Padilla losing his mind in a US military brig during his ordeal of solitary confinement and torture between 2002 and 2005 — and if that is understood, then the correct focus in the Warsame story might become clear. That is to ask, ten years after ships were used to hold prisoners seized after the invasion of Afghanistan, at the start of the so-called “War on Terror,” why a ship has now been used to hold, for several months, a prisoner seized in connection with another conflict — in Somalia — in which the United States is not even officially involved.

In addition, it is also worth asking why, two and a half years since the end of the Bush administration, we are hearing once again about how a prisoner held outside the law had his first interrogations sessions — conducted under unspecified circumstances — followed by non-coercive interrogations by FBI agents, which were designed to secure evidence for a federal court trial. As the Associated Press described it, Warsame “was interrogated at sea by intelligence officials,” and it was only later that the FBI stepped in and “began the interrogation from scratch, in a way that could be used in court.”

Under Bush, the follow-up interrogators, after the torture had taken place, were openly referred to as “clean teams” — as they were in February 2008 when Khalid Sheikh Mohammed and his alleged co-conspirators, held for years in secret CIA torture prisons, were first put forward for military trials. If we are back in the dirty world of torture, that is even more chilling than the persistent attempts by lawmakers to establish a militarized state.

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, 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.

The answer has to be that it would be hard to conceive of a neater example of how the military and the intelligence agencies — or the CIA, at least — are at the very heart of government.

The door that is shutting is the one that involves accountability for the many prisoners subjected to “extraordinary rendition,” torture, and, in some cases, murder, in the Bush administration’s “high-value detainee” program. This involved the creation of secret torture prisons in Thailand, Poland, Romania and Lithuania, and, for a while, in Guantánamo, as well as others in Afghanistan and Iraq, the rendition of prisoners between these facilities, and also to the dungeons of allies in Jordan, Egypt, Syria and Morocco.

The Bush administration’s program also involved the cynical crafting of memoranda purporting to redefine torture, so that it could be practiced by the CIA. These memos — which will be known forever as the “torture memos” — were written in the Justice Department’s Office of Legal Counsel (OLC) by John Yoo, and approved by his boss, Jay S. Bybee. Yoo was part of a team of lawyers clustered around Vice President Dick Cheney, who were responsible for finding ways to justify the torture program that also involved President Bush and defense secretary Donald Rumsfeld, as well as other senior officials, including Condoleezza Rice. The other lawyers were: David Addington, Cheney’s former chief of staff and legal counsel; William J. Haynes II, the Pentagon’s former general counsel; his deputy, Daniel Dell’Orto; former White House counsel (and later Attorney General) Alberto Gonzales; and his deputy, Tim Flanigan.

In President Obama’s America, in which Obama himself came to power declaring his “belief that we need to look forward as opposed to looking backwards,” none of these men have been held accountable for their actions. In fact, as I explained in an article last week, the President has done all in his power to make sure that those who authorised torture or attempted to justify its use have been shielded from accountability for their actions. As I wrote:

Obama stood by and watched as, in February last year, a four-year internal investigation into John Yoo and Jay S. Bybee, lawyers at the Justice Department’s Office of Legal Counsel, was cynically overturned by a DoJ fixer, David Margolis. Yoo had written the notorious “torture memos,” issued on August 1, 2002, that purported to redefine torture so that it could be used by the CIA, and Bybee had approved them, but when the investigation concluded that both men had been guilty of “professional misconduct,” Margolis decided instead that they had only exercised “poor judgment.”

Obama also stood by last September when five men subjected to “extraordinary rendition” and torture by the CIA, including the British residents Binyam Mohamed and Bisher al-Rawi, had their lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary that had functioned as the CIA’s travel agent, blocked by the administration, and by the 9th Circuit Court of Appeals, which agreed with Obama’s Justice Department that it was appropriate to use the little-known and little-used “state secrets” doctrine to block any attempt to expose the truth in any US court on the basis that it would endanger “national security” — a decision that was upheld by the Supreme Court last month.

Last December, we also discovered, via WikiLeaks, that the Obama administration had put pressure on the Spanish government to prevent the courts in Spain from pursuing an investigation into six former Bush administration lawyers — David Addington, William J. Haynes II, Alberto Gonzales, Jay Bybee, John Yoo and Douglas Feith, former undersecretary of defense for policy  — for “creating a legal framework that allegedly permitted torture.”

As a result, the news that special prosecutor John Durham has completed a two-year investigation into 101 cases involving the CIA’s treatment of detainees, and has concluded that just two deserve to proceed to criminal prosecutions, is truly depressing. President Bush, as we learned in February, is unable to travel outside the United States because, after he bragged in his autobiography that he had authorized torture (the waterboarding of Khalid Sheikh Mohammed) lawyers will serve him with a torture complaint wherever he goes, but in the US the only people to face a criminal prosecution are those whose actions are deemed to have exceeded the parameters laid down by John Yoo and Jay S. Bybee.

To be fair to John Durham, his investigation was hobbled from the very beginning, because of the limits imposed on him. As Eric Holder explained in a statement announcing Durham’s conclusions:

On August 24, 2009, based on information the Department received pertaining to alleged CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate [from that of January 2008, when Bush Attorney General Michael Mukasey appointed him to investigate the destruction of videotapes showing the torture of "high-value detainees"] to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. I made clear at that time that the Department would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. Accordingly, Mr. Durham’s review examined primarily whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute.

Those particular comments — that the Justice Department “would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees” — is the key to the whitewash that has just occurred, and it is so important that it was repeated in August 2009 by White House press secretary Robert Gibbs, when the appointment of Durham was announced. Gibbs noted that “the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted.”

What no one has yet explained is who authorized the revision to the conclusions reached by a four-year internal investigation into the “legal guidance” provided by Yoo and Bybee. As I noted above, that investigation concluded that Yoo and Bybee were guilty of “professional misconduct,” which would have allowed them to be investigated by their bar associations, and might have opened up a clear route to the White House, but veteran DoJ fixer David Margolis was allowed to override the investigation’s conclusions, with his excuse that the two lawyers had merely exercised “poor judgment.”

This was in January 2010, but Holder’s appointment of Durham in August 2009, and his comments at the time, as well as those of the White House, indicate that everyone involved already knew that the results of the OPR investigation would be rewritten so that Yoo and Bybee would be excused. The outstanding questions, therefore, are: did anyone put pressure on the Obama administration to whitewash Yoo and Bybee, and did it happen as part of an agreement between the administration and the CIA prior to April 17, 2009?

That was the date when the President released four previously classified OLC “torture memos” from 2002 and 2005 as part of a court case, but also stated, explicitly, “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

For what it’s worth, the criminal prosecutions recommended by John Durham and approved by Eric Holder will investigate the November 2003 murder, in the notorious Abu Ghraib prison in Iraq, of Manadel al-Jamadi, also known as “the Iceman” (which was recently reported by Adam Zagorin of Time, as I discussed here), and the November 2002 murder, in the secret prison in Afghanistan known as the “Salt Pit,” of Gul Rahman. This story was first reported by Dana Priest in the Washington Post in March 2005, but it was not until March 2010 that Adam Goldman of the Associated Press uncovered his name and provided crucial details about the circumstances of his death.

In both cases, there are reasons for extremely cautious optimism that any prosecution will not just to sacrifice a few low-level operatives as “bad apples,” but will also look a few notches up the chain of command, as Marcy Wheeler has been reporting on FireDogLake. Overall, however, Eric Holder’s announcement is bad news for accountability, as it suggests that the process of “look[ing] forward as opposed to looking backwards” is almost complete, with just a few loose ends to be tied up before we are all obliged to move on, forever consigning to oblivion any outstanding demands we might have — including a full account of who was held in the “high-value detainee” program, and what happened to those who did not end up in Guantánamo, and, most importantly, another question, asked repeatedly until a satisfactory answer is given: how can it be that senior Bush administration officials and their lawyers broke the US torture statute, which requires torturers to be prosecuted, and got away with it?

June 30, 2011 will go down in history as a very bleak day indeed for US justice.

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, 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.

The President was absolutely correct in his assessment of the problems with torture, and was also correct to point out how “President Reagan signed, and a bipartisan Senate coalition ratified” the UN Convention Against Torture, which came to force on June 26, 1987, and whose anniversary has been marked, since 1998, as the International Day in Support of Victims of Torture.

However, when President Obama wrote of “paying tribute to all those who are courageously working to eradicate these inhuman practices from our world, and reaffirming the commitment of the United States to achieving this important goal,” and of remaining “dedicated to supporting the efforts of other nations, as well as international and nongovernmental organizations, to eradicate torture through human rights training for security forces, improving prison and detention conditions, and encouraging the development and enforcement of strong laws that outlaw this abhorrent practice,” it was difficult not to ignore the stench of hypocrisy.

The problem, of course, is that, although Obama issued an executive order on his second day in office, upholding the absolute prohibition on the use of torture, he also declared his “belief that we need to look forward as opposed to looking backwards,” and has done all in his power to prevent any senior Bush administration officials or lawyers from being held accountable for authorizing or attempting to justify the use of torture.

As a result, Obama stood by and watched as, in February last year, a four-year internal investigation into John Yoo and Jay S. Bybee, lawyers at the Justice Department’s Office of Legal Counsel, was cynically overturned by a DoJ fixer, David Margolis. Yoo had written the notorious “torture memos,” issued on August 1, 2002, that purported to redefine torture so that it could be used by the CIA, and Bybee had approved them, but when the investigation concluded that both men had been guilty of “professional misconduct,” Margolis decided instead that they had only exercised “poor judgment.”

Obama also stood by last September when five men subjected to “extraordinary rendition” and torture by the CIA, including the British residents Binyam Mohamed and Bisher al-Rawi, had their lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary that had functioned as the CIA’s travel agent, blocked by the administration, and by the 9th Circuit Court of Appeals, which agreed with Obama’s Justice Department that it was appropriate to use the little-known and little-used “state secrets” doctrine to block any attempt to expose the truth in any US court on the basis that it would endanger “national security” — a decision that was upheld by the Supreme Court last month.

Last December, we also discovered, via WikiLeaks, that the Obama administration had put pressure on the Spanish government to prevent the courts in Spain from pursuing an investigation into six former Bush administration lawyers — Attorney General Alberto Gonzales; David Addington, former chief of staff and legal adviser to Vice President Dick Cheney; William Haynes, the Pentagon’s former general counsel; Douglas Feith, former undersecretary of defense for policy; and Jay Bybee  and John Yoo — for “creating a legal framework that allegedly permitted torture.”

As a result, Obama’s claims that the US has a “commitment” to eradicating torture, and is also involved in “encouraging the development and enforcement of strong laws that outlaw this abhorrent practice,” are thoroughly unacceptable, stinking of hypocrisy, as I mentioned above.

In fact, as the 24th anniversary of the entry into force of the UN Convention Against Torture passes, the only hope that anyone will be held accountable for torture under the Bush administration (in the US at least, as opposed to other investigations that are underway — in Poland, for example) is in the hands of John Durham. The “respected, Republican-appointed US Attorney from Connecticut,” as Adam Zagorin described him two weeks ago in an important Time magazine blog post, “has begun calling witnesses before a secret federal grand jury in Alexandria, Va.,” in connection with an investigation he began in August 2009, when Attorney General Eric Holder authorised him to investigate the activities of CIA agents, but only those that exceeded the guidelines drawn up by John Yoo and Jay S. Bybee — “roughly a dozen cases” in total.

This appeared, at the time, to be a depressingly weak response to the disgust that Holder apparently felt when he learned the full details of the Bush administration’s torture program, but with hindsight it may have been the only way to pierce the “golden shield” provided to Bush administration officials by the “torture memos.” No clue has been provided as to who authorized David Margolis to clear Yoo and Bybee of “professional misconduct,” but if the decision was out of Eric Holder’s hands, then it remains possible that Holder’s appointment of Durham was genuinely meant to yield results, simply because it focuses only on actions that exceeded the guidelines.

As Zagorin described it, Time had “obtained a copy of a subpoena signed by Durham,” which stated that “the grand jury is conducting an investigation of possible violations of federal criminal laws involving War Crimes (18 USC/2441), Torture (18 USC 243OA) and related federal offenses.” One of the cases identified by Time is that of Manadel al-Jamadi, also known as “the Iceman.” An Iraqi prisoner killed in Abu Ghraib on November 4, 2003, al-Jamadi’s story was the focus of a masterly article in the New Yorker in November 2005, in which Jane Mayer asked, Can the CIA legally kill a prisoner?” (and in the same month Zagorin also wrote an article for Time).

As Zagorin noted in his recent article, although al-Jamadi’s death received “worldwide publicity,” because his ice-wrapped corpse featured in some of the notorious Abu Ghraib photos, only one officer was charged in connection with his death — and acquitted, hence the title of Mayer’s article. Navy SEALs had “injured al-Jamadi during his violent arrest and initial questioning, but an autopsy concluded that those events could not have killed him.” In fact, he had died after “being turned over by the SEALs at Abu Ghraib, kicking and screaming in English and Arabic, [and] placed in a cell with a CIA interrogator and contract linguist.”

Zagorin proceeded to explain that “[o]fficial investigations ruled al-Jamadi’s death a homicide,” because, while in CIA custody, he “was hung on a wall before succumbing to asphyxiation and ‘blunt force injuries.’” The circumstances of his death were so severe that the CIA’s Inspector General “referred the case to the Justice Department” for possible prosecution, “but no action was taken.”

According to Zagorin’s report, Durham is seeking evidence about al-Jamadi’s death from military personnel who served at Abu Ghraib, and “is asking a lot of questions — like who took photographs of the body, and when.” He has also reportedly “asked about civilian contractors at the site, mentioning one by name, and has probed the source of the multiple shoe prints apparently found on material used to wrap al-Jamadi’s body.” One particular individual being investigated has not been named by Durham, but “those close to the case believe that person is Mark Swanner, a non-covert CIA interrogator and polygraph expert who questioned al-Jamadi immediately before his death,” even though he “told investigators several years ago that he did not harm” al-Jamadi.

Zagorin also noted:

Unanswered questions surround the killing. According to official reports, investigators were unable to examine key evidence because the victim’s blood was removed from the floor of the death cell on orders of a US military officer. The CIA allegedly removed a blood-stained hood that had been placed over the victim’s head. A CIA supervisor later admitted he destroyed it. Immediately after the killing, CIA and military personnel argued over who might be blamed; the corpse was iced to slow decomposition and stored in a shower room overnight, before being spirited away with an intravenous tube attached to one arm, creating the impression that al-Jamadi was still alive.

Whether Durham’s investigation will lead to any kind of prosecution is unknown. Zagorin wrote that “any charges involving the CIA, much less accusations of war crimes and torture, could be explosive,” adding that “Durham’s inquiry amounts to a crawl through a political minefield.” This is certainly true, although some observers have always hoped that pinning charges on individuals might encourage them to point up the chain of command to those who authorised their actions, breaking through the protective shield that still surrounds those like George W. Bush, Dick Cheney and Donald Rumsfeld who bear the ultimate responsibility for creating the environment in which al-Manadi was murdered.

There are certainly obstacles to any action. As Zagorin explained, last month Michael Mukasey, Attorney General under George W. Bush, “declared it ‘absolutely outrageous’ that the Justice Department was still looking into potential CIA wrongdoing.” He also noted that seven former CIA directors had asked Holder to scrap the investigation as soon as it was announced in August 2009, and that former Republican Senator Rick Santorum stated that the investigation was “a political prosecution” and “should be terminated immediately,” as he recently launched his Presidential bid.

However, the main reason for doubting that Durham’s investigation will lead anywhere — above and beyond the significance of Monday’s decision by the Supreme Court not to allow a torture suit by 250 former Abu Ghraib prisoners to proceed against contractors at the prison — is John Durham’s previous capitulation regarding his investigations. Under George W. Bush, Durham was tasked with investigating the destruction of videotapes documenting the CIA’s torture of “high-value detainees,” despite a court order to preserve the tapes as evidence.

However, in November last year, after nearly three years, the Justice Department announced that Durham had “concluded that he would not bring a criminal case against the CIA officers,” even though, as the Washington Post explained at the time, “The burning of the 92 tapes on Nov. 9, 2005, was authorized in a cable sent by Jose Rodriguez Jr., head of the agency’s directorate of operations,” and a former senior CIA operations officer told the Post that the tapes were not destroyed “in total innocence,” because “there was a standing order from a federal judge that said not to destroy the tapes, [which] trumps any inside the CIA legal call.”

As the 10th anniversary of the 9/11 attacks approaches, it may be wishful thinking to consider that, at some point, someone may be held accountable for the many acts of torture and murder that have taken place in the “War on Terror,” but for now John Durham’s ongoing investigation remains the only hope that there will be any kind of accountability within the United States.

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, 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.

Accusing the five men of being “responsible for the planning and execution” of the 9/11 attacks, the Pentagon added that the eight charges are “conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, hijacking aircraft, and terrorism.”

As the Pentagon proceeded to explain, subject to approval by the Commissions’ Convening Authority, Retired Vice Adm. Bruce MacDonald, prosecutors recommended that the charges “be referred as capital.”

Anyone paying attention will realise that we have been here before, on February 11, 2008, when the Pentagon announced that Khalid Sheikh Mohammed and the the four others named above (plus a sixth man, Mohammed al-Qahtani, against whom the charges were later dropped) were charged with “conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism” — and four of them were, in addition, charged with “hijacking or hazarding a vessel.”

Astute readers will also recall that 18 months ago, on November 13, 2009, Attorney General Eric Holder announced that the five men charged on Tuesday would be tried in federal court rather than in a Military Commission at Guantánamo. Holder confidently told the nation, and the wider world:

After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.

I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures.

I also want to assure the American people that we will prosecute these cases vigorously, and we will pursue the maximum punishment available. These were extraordinary crimes and so we will seek maximum penalties.

To critics of the Military Commissions (and there were many), Holder’s decision to pursue the alleged 9/11 co-conspirators in federal court was a principled and appropriate endorsement of federal court trials as the correct venue for terrorist trials. The Commissions, revived by Vice President Dick Cheney in November 2001, had been designed to lead to the swift executions of those seized — and, in many cases, tortured — in the “War on Terror,” and although the Supreme Court had ruled them illegal in June 2006, they had been revived by Congress.

There, lawmakers, adhering to the same flawed rationale of the “War on Terror” as the Bush administration — namely, that terrorists were actually “warriors” — invented war crimes for a revived version of the Commissions that first surfaced in the fall of 2006, and was then revived for the Obama administration in the summer of 2009.

Unfortunately for Holder, who believed — correctly, in my opinion — that trying Khalid Sheikh Mohammed in a courtroom would be “the defining event of my time as Attorney General,” and that “History will show that the decisions we’ve made are the right ones,” the decision to revive the Commissions, as well as endorsing federal court trials, fatally muddied the waters.

Holder looked rather foolish when, at the same time as announcing that KSM and his alleged co-conspirators would be tried in federal court, he also stated that five other prisoners would face trials by Military Commission, but, more importantly, the administration’s ambivalence — and its refusal just to focus on federal court trials — gave critics the option of pushing to shut off federal court trials while advocating for Military Commission trials at Guantánamo instead, and this is exactly what happened.

A cynical movement to stir up hysteria regarding a federal court trial in New York was so successful that the White House backed off, allowing lawmakers the opportunity to insert a provision into a military spending bill before Christmas last year that prevented President Obama from bringing any Guantánamo prisoner to the US mainland to face a trial, and which, to rub salt into the wound, explicitly mentioned Khalid Sheikh Mohammed by name.

Faced with this rebellion, Obama refused to consider a veto or a signing statement, meaning that the only viable option for a trial would be at Guantánamo, as the cheerleaders for the Commissions always intended.

Eric Holder failed to disguise his disappointment when, on April 4, he announced the decision to proceed with a Military Commission trial. In a speech full of criticism, he told lawmakers:

Decisions about who, where and how to prosecute have always been — and must remain — the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.

Tuesday’s announcement, therefore, provides nothing to celebrate — just a confirmation of President Obama’s failures to seriously tackle his critics when it comes to “national security” issues, which has been repeated over and over again in the last two years.

For Eric Holder, the disappointment is far greater, as he is on record as noting that history will judge him on how he deals with Khalid Sheikh Mohammed and his alleged co-conspirators. However, Holder is not the only loser. The administration, Congress, and the American people who, in large numbers, have allowed themselves to be seduced by the poisonous rhetoric of the Bush administration’s “War on Terror” have also lost, for the simple reason that Military Commissions remain a shameful, sub-standard venue for trials as important as these.

Contrary to the rhetoric of those endorsing the Commissions, the last thing the relatives of those who died on September 11, 2001 need is for the alleged perpetrators to be prosecuted in a chaotic kangaroo court. However, nearly ten years after the attacks, justice — fair, transparent justice, with a long historical pedigree — remains sidelined, bullied into submission by those who, still driven by vengeance, want the perpetrators to be “warriors” rather than what they were — mass murdering criminals, who do not deserve to be able to usurp the rhetoric of this phoney war for their own ends.

As published exclusively on the website of the Future of Freedom Foundation.

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.

This is an important article, in which Hertzberg contrasts Guantánamo unfavorably with how the United States treated prisoners of war in the Second World War, describing how a “relative handful of shackled, isolated prisoners has somehow been permitted to engender a miasma of popular fear and political cowardice that contrasts shamefully with the matter-of-fact courage of an earlier and simpler time.” In addition, when writing about how Obama’s promise to close Guantánamo has not come to pass, he correctly identifies the reasons as “a combination of political nihilism on the part of Republicans, political ineptitude on the part of his own Administration, and political fecklessness on the part of the people’s representatives on Capitol Hill.”

Crucially, however, Hertzberg recommends that Obama could, and should address “the lack of any official accountability for the abuses of the past, especially the embrace of torture,” noting, “Perhaps there are good, prudential reasons for stopping short of prosecuting those who authorized this vile offense to elementary morality for the crimes against American and international law that it entailed,” but adding, “No such reasons forbid the appointment of a truth commission,” which “would be a healthy act of atonement.”

Prisoners
By Hendrik Hertzberg, The New Yorker, April 18, 2011

On May 13, 1943, Axis forces in North Africa surrendered. The Allies suddenly found themselves saddled with nearly three hundred thousand prisoners of war, including the bulk of General Erwin Rommel’s famed Afrika Korps. Unable to feed or house their share, the British asked their American comrades to relieve them of the burden. And so, by the tens of thousands, German soldiers were loaded aboard Liberty Ships, which had carried American troops across the Atlantic. Eventually, some five hundred P.O.W. camps, scattered across forty-five of the forty-eight United States, housed some four hundred thousand men. In every one of those camps, the Geneva conventions were adhered to so scrupulously that, after the war, not a few of the inmates decided to stick around and become Americans themselves. That was extraordinary rendition, Greatest Generation style.

The “war on terror” is a very different kind of war, and the prisoners thereof are very different, too. It’s not just that a higher proportion of them appear to have been truly dedicated to the ideology in whose name they were fighting, or that they were unaffiliated with a government. It’s also that their numbers are small — a hamlet compared to the city-size P.O.W. population of 1945. In the nine years since the creation of the purpose-built prison at Guantánamo Bay, Cuba, a grand total of seven hundred and seventy-nine men (and boys — the youngest was fifteen years old when he was captured) have been sent there. It currently holds a hundred and seventy-two. Yet this relative handful of shackled, isolated prisoners has somehow been permitted to engender a miasma of popular fear and political cowardice that contrasts shamefully with the matter-of-fact courage of an earlier and simpler time.

A week ago, on the same day that President Obama officially launched his campaign for reelection, his Attorney General, Eric Holder, announced that Guantánamo’s most notorious inmate, Khalid Sheikh Mohammed, along with four others accused of direct involvement in the 9/11 attacks, will at last be brought to trial — but on Cuban, not American, soil, and before a panel of military officers, not a civilian judge and jury. You may recall that the last time Barack Obama was a candidate he promised that, if elected, he would shut Guantánamo down (by then a fairly uncontroversial position, one that even President Bush and his would-be Republican successor had come around to) and that he would see to it that accused terrorists were prosecuted in civilian courts rather than by military commissions. He promised, too, that his Administration would not continue indefinite detention without indictment or trial and, of course, that it would put a definitive end to the use of torture. He has been able to keep only the last of these promises fully. The rest have been undone by a combination of political nihilism on the part of Republicans, political ineptitude on the part of his own Administration, and political fecklessness on the part of the people’s representatives on Capitol Hill.

Two days after the inauguration, Obama, in the dazzling dawn of his Presidency, issued an executive order directing that the Guantánamo detention camps “be closed as soon as practicable, and no later than one year from the date of this order.” The slippage began less than a month later, with a complicated legal tussle over seventeen Gitmo prisoners. Even though they were Chinese Uighurs who had had nothing to do with anti-American violence, the mere possibility that they might set foot on the United States mainland was enough to ignite a brushfire of not-in-my-back-yard hysteria. By May of 2009, it had reached the point where the Senate voted, 90–6, not only to keep Gitmo open indefinitely but also to block the transfer of any of its detainees to U.S. soil, where the civilian courts are. (Though all six dissenters were Democrats, the rest of the caucus voted with the Republicans.) At times, Administration bungling has enabled local grandstanding. Later in 2009, the Justice Department neglected to prepare New York’s City Hall for the impact of its original plan for Khalid Sheikh Mohammed, which was to try him in a Manhattan civilian court. Mayor Bloomberg, Police Commissioner Raymond Kelly, and Senator Charles Schumer quickly turned tail, and so did Obama.

A dispiriting series of tactical retreats from civil-liberties principles has followed. In January of this year, the President signed a politically veto-proof defense-appropriation bill that had been amended to again block funding for any transfer of detainees from Guantánamo to the home of the brave. In March, Obama issued another executive order. While it establishes twice-yearly reviews of the status of current detainees, confirms their habeas-corpus rights, and permits them to be represented by outside lawyers as well as by government-appointed defenders, the order also allows trials by military commissions to go forward, and at Guantánamo to boot. Now, in April, we learn that one such trial will be the case that, a year ago, Holder said (to this magazine’s Jane Mayer) would be “the defining event of my time as Attorney General.” It appears that Holder’s prediction will come true, though not in the way he intended. He was sure that he had an overwhelming case against Khalid Sheikh Mohammed, one that would not have relied on evidence obtained through torture. (Mohammed was waterboarded a hundred and eighty-three times.) But he lost the bureaucratic battle. His anger last week as he announced the decision could not quite mask the Administration’s shame.

The collapse of Obama’s effort to close Guantánamo is the kind of failure that, in our atomized, increasingly dysfunctional political system, has a thousand deadbeat dads. But it has always been within the President’s power to remedy one aspect of the moral morass that Guantánamo symbolizes: the lack of any official accountability for the abuses of the past, especially the embrace of torture. There is no dispute that there was torture, that it was systematic, and that it was encouraged at the highest levels — George W. Bush, in his memoir, currently adorning the best-seller lists, practically boasts of approving it. Perhaps there are good, prudential reasons for stopping short of prosecuting those who authorized this vile offense to elementary morality for the crimes against American and international law that it entailed. No such reasons forbid the appointment of a truth commission. The work of such a commission, charged with compiling the record, affixing responsibility, and formally acknowledging what was done, would be a healthy act of atonement.

Obama has said more than once that he prefers to look forward, not backward. Not everyone feels that way. As soon as the Khalid Sheikh Mohammed reversal was announced, Peter King, the New York Republican who heads the House Committee on Homeland Security, called it “yet another vindication of President Bush’s detention policies.” It is no such thing. Even with all the failings of the current Administration, the difference between its approach and its predecessor’s is the difference between night and day, albeit a rainy, miserable day, overcast with dark clouds. But, by elevating amnesia to official policy, the President has put himself in a poor position to make even that argument.

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.

For opponents of the unconstitutional aberration that is Guantánamo, last Monday — April 4, 2011 — will go down in the history books as the day that they were obliged to watch impotently as federal court trials for terrorist suspects were discarded or discredited, the tired and tawdry looking “War on Terror” was revitalized, and the Supreme Court, through its inaction, decided that judges in the D.C. Circuit Court — who have publicly criticized the Supreme Court for incompetence — should continue to decide detainee policy at Guantánamo.

What this means, as I will spell out in detail below, is that, having gutted habeas corpus of all meaning in rulings over the last 15 months, the D.C. Circuit Court will be allowed to continue deciding that every prisoner still held at Guantánamo should — and very possibly will — be held forever, regardless of whether they were cleared for release by other judges, or by the President’s own interagency Guantánamo Review Task Force.

In last Monday’s first capitulation, the Obama administration — via Attorney General Eric Holder — abandoned a 16-month promise to try alleged 9/11 mastermind Khalid Sheikh Mohammed and four others in federal court, capitulating to Republican pressure — and a ban on moving prisoners to the US mainland to face trials, which was unconstitutionally implemented by Congress in December — by announcing that the men would, instead, be tried by Military Commission at Guantánamo.

The administration therefore fulfilled a key Republican aim — ensuring that the highest-profile prisoners in Bush’s “War on Terror” would be regarded as “warriors” rather than as criminals — and, in effect, turned the clock back to 2008, when the Bush administration held three pre-trial hearings in the Military Commissions of these five men.

Admittedly, the Obama administration bears the ultimate responsibility, having revived the Military Commissions in the summer of 2009, when senior officials could have consigned the reviled system to the grave of failed legal novelties. In addition, it may all backfire, as the Commissions are built on dubious legal sands, and the proceedings tend to be full of holes through which determined defendants like Khalid Sheikh Mohammed will be able to mock America more successfully than in federal court. However, the end result is that Republicans — and, should they wish, George W. Bush and Dick Cheney — will be able to claim that they were right all along.

On the judicial front, the Supreme Court has ducked Guantánamo since its last major intervention, in Boumediene v. Bush, in June 2008, when the justices ruled that the prisoners had constitutionally guaranteed habeas corpus rights, and also ruled that Congress had acted unconstitutionally by attempting to strip the prisoners of those rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

Although this was an enormously important decision, reinforcing the unusual but crucial ruling in June 2004, in Rasul v. Bush, that the prisoners, though seized in wartime, had habeas rights because the Bush administration had cut off all mechanisms whereby innocent men seized by mistake could prove their innocence, it also sowed the seeds of last Monday’s disaster.

Essentially, the Supreme Court refused to provide a description of an “enemy combatant,” leaving it to the lower courts to decide that, and although the District Court in Washington D.C. did a fine job of coming up with its own definition, and applying it in practice — and tweaking it along the way — in 41 cases from October 2008 to December 2009, for the last 15 months judges in the D.C. Circuit Court (the court of appeals) have fought back, with a number of notoriously right-wing judges refusing to accept the District Court’s generally accepted decision that some sort of involvement in the command structure of al-Qaeda and/or the Taliban is necessary to deny their habeas petitions.

Beginning with Al-Bihani v. Obama in January 2010, in which D.C. Circuit Court judges argued for no limit on the President’s wartime powers in the case of a Yemeni cook for Arab forces supporting the Taliban in Afghanistan, other panels have attacked the “command structure” argument, insisting that being “part of” al-Qaeda and/or the Taliban is sufficient to justify ongoing detention for life, and proceeding to attack the already low threshold required of the government — that it demonstrates its case by a “preponderance of the evidence,” rather than “beyond any reasonable doubt.”

What the D.C. Circuit Court desires, as judges have occasionally spelled out, is for the burden to be nothing more than “some evidence” — and that in a very open-ended way, as I explained in my last broadside directed at the Circuit Court. If they could, one suspects that the Circuit Court judges would simply return to the Combatant Status Review Tribunals at Guantánamo, held in 2004-05, which the Supreme Court in Boumediene found “insufficient.” In the CSRTs, the burden of proof was not on the government, but, outrageously, on the defendant, even through the prisoners in Guantánamo had no way of securing any evidence in their favor, or even of knowing what the government’s supposed case was against them.

In an attempt to overturn the Circuit Court’s dominance of all the arguments regarding the Guantánamo prisoners, a number of submissions have been made to the Supreme Court in recent months, and although these have all been turned down, as I mentioned above, it is worth analyzing what has been happening, in order to understand more thoroughly the dark forces that are now in control.

In an excellent editorial last month, the New York Times addressed the problem with the D.C. Circuit Court, focusing specifically on the court’s opposition to  attempts by the Uighurs — Muslims from China’s oppressed Xinjiang province, seized by mistake, who won their habeas petition in October 2008 — to be allowed to live in the US.

Although the judge in their case, Judge Ricardo Urbina, ordered that they be brought to live in the US in October 2008, the Bush administration — and then the Obama administration — appealed, and in February 2009, long before the Circuit Court specifically began meddling in reversing successful habeas opinions, or unilaterally calling for an expansion of executive power — the Circuit Court agreed. Under Judge A. Raymond Randolph — notorious for endorsing every opinion about Guantánamo under President Bush that was subsequently overturned by the Supreme Court — a panel of judges ruled, as the Times described it, that Judge Urbina “lacked authority to free them in the United States because the ‘political branches’ have ‘exclusive power’ to decide which non-Americans can enter this country.”

Since then, although 12 of the 17 Uighurs have accepted new homes (in Bermuda, Palau and Switzerland), the Court has continued to resist claims made by the other five, who turned down offers to rehouse them made by Palau and at least one other unidentified country, because they did not trust those countries to protect them from the Chinese government.

Appalled by this decision, and by all the other developments in the last 15 months, the Times boldly pointed out that the D.C. Circuit Court “has dramatically restricted the Boumediene ruling,” and that, “In its hands, habeas is no longer a remedy for the problem the Boumediene majority called ‘arbitrary and unlawful restraint.’”

The editors proceeded to note that, in the Uighurs’ brief to the Supreme Court, challenging this decision (as the latest instalment of a case that has bounced around the courts for the last two years), their lawyers point out explicitly that the only constant factor in this case is “the court of appeals’ refusal to apply, or even acknowledge” the Boumediene ruling, and the editors also provided an eye-opening glimpse into the partisan nature of Judge Randolph’s opposition to the decisions regarding Guantánamo that have come before him, explaining:

Judge Randolph … wrote the opinion for the District of Columbia Circuit that the Supreme Court overturned in Boumediene. In a speech called “The Guantánamo Mess” last fall, he said that the justices were wrong to do so and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in The Great Gatsby. “They were careless people,” he read. “They smashed things up … and let other people clean up the mess they had made.”

This contemptuous approach to the Supreme Court’s ruling prompted the New York Times to respond:

In Kiyemba [the Uighurs' case] and related cases, however, it is Judge Randolph and others on the District of Columbia Circuit who are making the mess. Respected lawyers say they are subverting the Supreme Court and American justice. Of 140 challenging their detentions in the face of this hostility, dozens who should have been freed will likely remain in prison.

In conclusion, the Times sought to remind the Supreme Court that “Alexander Hamilton called ‘arbitrary imprisonments’ by the executive ‘the favorite and most formidable instruments of tyranny,’” and that, in Boumediene, Justice Anthony Kennedy “stressed that habeas is less about detainees’ rights, important as they are, than about the vital judicial power to check undue use of executive power,” adding that this is important because the Circuit Court “has all but nullified that view of judicial power and responsibility backed by Justice Kennedy and the court majority,” and that the Supreme Court should now remind the Circuit Court “which one leads the federal judicial system and which has a solemn duty to follow.”

If the Times‘ editors made a valid case — and I believe they did — then it was the Supreme Court who failed to take their responsibilities on board, because last Monday they refused to consider the Uighurs’ case, and also turned down three other habeas-related submissions — challenging the government’s use of hearsay, the “preponderance of evidence” standard, and the sweeping executive powers endorsed in Al-Bihani.

To date, analysts have suggested that the Supreme Court might have been unwilling to revisit Guantánamo, because Elena Kagan, who replaced Justice John Paul Stevens, served as Obama’s Solicitor General working on Guantánamo issues, and would have had to recuse herself, leaving the court, in all likelihood, split 4-4 on any Guantánamo cases. However, as SCOTUSblog noted, Kagan did not recuse herself from two of the cases turned down last Monday, suggesting that the problem is actually that no one amongst the justices wants to step into the role taken by Justice Stevens, who, from 2004 to 2008, “had been the Court’s leader in asserting a strong role for the Justices in overseeing how the law of detention had developed.”

Along with the Obama administration’s capitulation to Republican demands on Guantánamo, the fact that the Supreme Court, under Obama, has also ended up more right-wing than it was under Bush, when it comes to detention issues in the “War on Terror,” appears to be some sort of cruel joke.

How on earth have we ended up in a situation whereby, as SCOTUSblog explained, the poisonous figure of Judge Randolph has been left in a position in which the Supreme Court’s denial of review last Monday “might … count as a personal triumph” for him — and, thereby, a tacit admission that he was correct to regard Boumediene as a “mess” that requires cleaning up? Was Justice Stevens the only reason that the US justice system did not thoroughly endorse arbitrary detention as official policy under George W. Bush?

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.

After this first success with the cleared prisoners — blocking entry to the US for the Uighurs, Muslims from China’s Xinjiang province, who had been cleared for release by a US court — Republicans, and, to a lesser extent, dissenters within Obama’s own party, realized that the power to shape national security issues was in their hands, particularly when the magic word “Guantánamo” was invoked.

As a result, when a young Nigerian, apparently recruited in Yemen, tried to blow up a Detroit-bound plane on Christmas Day 2009, and the critics howled that no Yemenis in Guantánamo should be released, the President didn’t point out that this was unacceptable, and was, moreover, a call for him to endorse a policy of “guilt by nationality.” Instead, he immediately capitulated, imposing a moratorium on the release of Yemenis from Guantánamo that still stands 15 months later, and that, single-handedly, undermined the President’s own promise to close the prison.

A similar success for Obama’s critics took place after Attorney General Eric Holder announced on November 13, 2009 that Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, on the same day that he announced that five other men would face trials by Military Commission at Guantánamo.

Although this announcement went down well initially, with most of the complaints coming from critics of the Commissions — myself included — who were dismayed that Obama and Holder had brought the much-criticized military trial system back from the dead, a cynical backlash soon started against the proposed federal court trial for the alleged 9/11 co-conspirators. This was orchestrated by Keep America Safe, an organization founded by 9/11 widow Debra Burlingame, rightwing pundit William Krystol, and Liz Cheney, the daughter of former Vice President Dick Cheney, which might, more appropriately, have been called “Keep America Afraid.” However, it succeeded in its mission, because, predictably by now, when the critics’ complaints were loud enough, Obama again backed down, effectively shelving the plans, and leaving Holder looking foolish.

Nevertheless, the Attorney General at least maintained some principles. Aware of the significance of the trial of Khalid Sheikh Mohammed and his alleged co-conspirators, Holder told Jane Mayer of the New Yorker last February that he was “determined not to capitulate on the idea of holding a 9/11 trial.” Mayer’s report continued:

“I don’t apologize for what I’ve done,” he told me at one point. “History will show that the decisions we’ve made are the right ones.” Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as “the defining event of my time as Attorney General.” But, he added, “between now and then I suspect we’re in for some interesting times.”

Those “interesting times” have seen Holder’s boss make no effort to fight back against his critics, so that, by the end of last year, supporters of Guantánamo in Congress were so emboldened, and so certain that Obama would do nothing to oppose them, that they inserted provisions into an important military spending bill explicitly prohibiting the administration from bringing Guantánamo prisoners to the US mainland to face a trial — specifically mentioning Khalid Sheikh Mohammed by name, in case anyone missed the point.

When the bill was passed, Obama could have vetoed it and fought to remove the offending provision, or he could, more contentiously, have issued a signing statement refusing to accept it, but predictably he did neither, meaning that Khalid Sheikh Mohammed and his co-accused would either remain in Guantánamo without facing a trial at all, or that the President would accept that he had been bullied into putting them forward for trial by Military Commission.

Announcing the bullying option on Monday, Eric Holder did not even bother to disguise his disappointment. He began by explaining that, when he had examined the best option for the trial in 2009, he had done so with an open mind, and had concluded that “the best venue for prosecution was in federal court.” He added, pointedly, “I stand by that decision today,” and then provided a compelling defense of the federal court decision:

[W]e were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators — one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor. We had carefully evaluated the evidence and concluded that we could prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws. We had consulted extensively with the intelligence community and developed detailed plans for handling classified evidence. Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over two hundred years.

Holder then proceeded to condemn Congress for interfering in the decision for political reasons, generously citing the President’s complaint that these “unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security,” but primarily expressing his own dismay far more eloquently, and inadvertently revealing how, in contrast, nothing that relates to Guantánamo is of particular importance to Obama, who has not spoken with conviction on the topic since becoming President:

Decisions about who, where and how to prosecute have always been — and must remain — the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.

Although Holder proceeded to express faith in the Commissions as a system capable of delivering justice, his preference for federal courts was apparent, as he launched into a passionate defense of federal court trials, which was prompted by “a number of unfair, and often unfounded, criticisms.” This was probably a reference to the way in which Republican critics tried to make political capital out of the federal court trial of Ahmed Khalfan Ghailani, the only Guantánamo prisoner brought to the US mainland (in May 2009), whose recent conviction and life sentence was portrayed by critics as a failure, because the judge barred the use of evidence derived through the use of torture (as he is required to do by law), and because the jury threw out all but one of the 285 counts against Ghailani.

In his defense of the federal court system, Holder wrote:

[F]ederal courts have proven to be an unparalleled instrument for bringing terrorists to justice. Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences. There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system.

In conclusion, Holder lamented that the 9/11 case “has been marked by needless controversy since the beginning.” As he proceeded to explain, “the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points,” but should “always [have] been about delivering justice for [the] victims of [9/11], and for their surviving loved ones. Nothing else.”

This is another poor day for justice, in an administration that has been marked by an absence of good news when it comes to dealing appropriately with national security issues. Eric Holder deserves only faint praise overall, because of the way in which he was evidently involved in sheltering Bush administration lawyers from prosecution for their involvement in the “torture memos” of August 2002, and for his failure to oversee the Guantánamo habeas legislation, which has proceeded as aggressively as if Bush was still in power. On the 9/11 trial, however, and through his obvious exasperation with a political climate in which terrorism — when related to Guantánamo — is shamelessly played by political opportunists or seized upon by rightwing ideologues who have whipped themselves up into an unseemly frenzy of hysteria and paranoia, Holder at least continues to express a belief in certain principles, however rmuch he has been obliged to ignore them.

Elsewhere in the administration, and particularly in the actions of Barack Obama, who has consistently failed to provide leadership when it is needed, there has not even been a glimmer of recognition that certain principles have been lost, and that, it seems to me, ought to be a cause for great concern as the cheerleaders for Guantánamo — and for the false thesis that terrorists are warriors who must be tried in war crimes trials — score another victory at Obama’s expense.

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.

Fortunately, two weeks ago NPR ran a major feature on a disturbing aspect of the isolation regime in domestic US prisons, focusing on the little-known Communications Management Units (CMUs), located in Terre Haute, Indiana, and Marion, Illinois, where the inmates are mostly Muslims, who are subjected to surveillance 24 hours a day, have their mail monitored, and are prevented from having any physical contact whatsoever with their families during prison visits –behavior that is more reminiscent of Guantánamo than of the rest of the domestic prison system.

Although Muslims make up the majority of the prisoners in the CMUs, there appears to be little internal logic regarding who is held and why, as those held range from foreign nationals involved in major acts of international terrorism to American citizens involved in fundraising for organzations acting as alleged fronts for terrorism and others caught in US government sting operations, which rather tends to enforce the notion that a large part of the CMUs’ rationale involves racial and religious profiling.

The prisoners also include — or have included — individuals involved in various forms of political activism, including environmental activism, and others for whom the rationale for keeping them under 24-hour surveillance appears to be that they “have spoken out at other prison units and advocated for their rights” and/or “have taken leadership positions in religious communities in those other prisons,” and/or because “officials worry that they could recruit other inmates for terrorism or direct people in the outside world to commit crimes.”

If you didn’t come across the NPR feature, I’ve cross-posted below the main article, “Guantánamo North”: Inside Secretive U.S. Prisons, but I also recommend a shorter follow-up article, Leaving “Guantanamo North”, and two other parts of the NPR feature that are not reproduced here: TIMELINE: The History Of ‘Guantanamo North’ and, in particular, DATA & GRAPHICS: Population Inside The CMUs, which contains the names and details of the 86 prisoners (and ex-prisoners) identified in the NPR report.

And if this subject interests you, then please read my follow-up article, Guantánamo in America (Part Two): The Nation Reveals More About the Secretive Prison Units for Muslims and Other Perceived Threats.

“Guantánamo North”: Inside Secretive U.S. Prisons
By Carrie Johnson and Margot Williams, NPR, March 3, 2011

Reports about what life is like inside the military prison for terrorism suspects at Guantánamo Bay are not uncommon. But very little is reported about two secretive units for convicted terrorists and other inmates who get 24-hour surveillance, right here in the U.S.

For the first time, an NPR investigation has identified 86 of the more than 100 men who have lived in the special units that some people are calling “Guantánamo North.” The Communications Management Units in Terre Haute, Ind., and Marion, Ill., are mostly filled with Muslims. About two-thirds of the inmates identified by NPR are U.S. citizens.

Civil rights groups have filed lawsuits that accuse the U.S. facilities of some of the same due process complaints raised by people at the island prison.

Who Belongs In The Prison Units?

Avon Twitty, 56, knows a lot about these Communications Management Units, or CMUs. He spent three years in one. These days, he lives in a house with chipped white paint, next to a highway in Washington, D.C.

This is the first time he has talked about his experience.

Twitty spent 27 years in prison for shooting a man dead after a neighborhood argument in the 1980s. Years before that, he converted to Islam. He has never been convicted of a terrorist offense.

But prison officials sent him to one of the special units in Terre Haute to finish out the remaining few years of his sentence. Twitty says he never found out why. He has a piece of paper saying he allegedly took part in “radicalizing” people, but the transfer document doesn’t explain who, or why. Twitty reads from one of the many letters he wrote to prison leaders, asking for answers.

“So my question was, what government agency labeled me a terrorist?” Twitty asks. “… What terrorist offense did I commit against the American government or any American citizen? What evidence demonstrated my guilt? Why was I not afforded my constitutional right to a due process hearing?”

Inside The Special Units

Prison officials opened the first CMU with no public notice four years ago, something inmates say they had no right to do under the federal law known as the Administrative Procedures Act.

The special unit in Terre Haute contains 50 cells housing some of the people the U.S. describes as the country’s biggest security threats, including John Walker Lindh.

He was picked up on the battlefield in Afghanistan, after fighting on the side of the Taliban. Prison officials have never released the names of inmates in Terre Haute or in a companion unit in Marion. But an NPR investigation found out who some of them are.

The units’ population has included men convicted in well-known post-Sept. 11 cases, as well as defendants from the 1993 World Trade Center bombing, the 1999 “millennium” plot to bomb the Los Angeles airport, and hijacking cases in 1976, 1985 and 1996.

Also under surveillance in the CMUs are men who have threatened officials from behind bars, ordered murders using contraband cell phones, or engaged in other communications that officials want to monitor.

The population also includes several black Muslims who have been disciplined for alleged radicalization and recruitment while incarcerated for other crimes.

When the Terre Haute unit opened in December 2006, 15 of the first 17 inmates were Muslim. In August 2008, 38 prisoners signed up for Ramadan observances.

As word got out that the special units were disproportionately Muslim, civil rights lawyers say, the Bureau of Prisons started moving in non-Muslims.

The group included tax resisters, a member of the Japanese Red Army and inmates from Colombia and Mexico. Inmates say the guards there called them “balancers.”

The Bureau of Prisons says a total of 71 men now live in the units.

Segregation Allegations

Alexis Agathocleous, a lawyer at the Center for Constitutional Rights, has a hunch about how the population came to be.

“We were concerned about what appears to be racial profiling and also a pattern of designations to the CMUs of people who have spoken out at other prison units and advocated for their rights and have taken leadership positions in religious communities in those other prisons,” he says.

They are segregated from other prisoners because officials worry that they could recruit other inmates for terrorism or direct people in the outside world to commit crimes.

American University law professor Stephen Vladeck reviewed NPR’s findings. He says he has some questions about the secrecy surrounding the units and whether the prison is sending the right people there.

“I think the real question is, what are the constraints and how are we sure that the right people are being placed in these units and not the wrong ones?” Vladeck says.

“Mixing prisoners from different backgrounds who actually don’t necessarily live up to those criteria I think is troubling,” Vladeck adds, because it means some inmates might not belong there, and others who do belong may not be getting the attention they deserve.

NPR found two reports, marked “law enforcement sensitive,” from 2009. In them, intelligence analysts for the Bureau of Prisons describe religious tension among different Muslim groups in the special units, including at least one violent episode involving a man described as an enforcer.

In those units, people convicted of international terrorism mingle with more conventional criminals. So Omar Mohammed Ali Rezaq, who hijacked an EgyptAir flight with other members of a Palestinian terrorist group in 1985, lives in the CMU along with Muslims who were convicted in U.S. government sting operations but who didn’t have the resources to carry out a plot on their own.

Eavesdropping And Restrictions

Guards and cameras watch the CMU inmates’ every move. Every word they speak is picked up by a counterterrorism team that eavesdrops from West Virginia. Prison officials budgeted more than $14 million for the snooping operation last year, according to appropriations documents and congressional testimony.

Restrictions on visiting time and phone calls in the special units are tougher than in most maximum security prisons. Inmates who lived in the CMUs and their spouses talked to NPR about them for the first time.

Hedaya Jayyousi’s husband, Kifah, served in the U.S. Navy. He also taught engineering. Then he was convicted of supporting groups in Bosnia and Chechnya that the U.S. government says are tied to terrorism. Kifah Jayyousi has lived in both CMUs.

Mrs. Jayyousi now looks after their five children. Unlike most other prison inmates, the people in the CMUs are not allowed so-called contact visits, where they can touch their families. They get fewer hours of visiting time and fewer phone privileges, too.

“What happens is we really get very stressful because the way the visit [is] set,” Hedaya Jayyousi says, “we need to hold the phone in our hands, very thick glasses. You can’t hear him. [The girls] can’t touch him.”

A History Of Lawsuits

For the past year, Twitty and other inmates have been suing the Federal Bureau of Prisons. They say the special units were set up outside the law and raise serious due process issues. Unlike prisoners who are convicted of serious crimes and sent to a federal supermax facility, CMU inmates have no way to review the evidence that sent them there or to challenge that evidence to get out.

Twitty says he actually spent months longer in prison than he had to because of his designation to the special CMU unit. The halfway house in Washington wouldn’t accept him for several months.

A federal judge in Washington, D.C., is considering whether to let the prisoners go forward with the lawsuit.

Agathocleous, from the Center for Constitutional Rights, is representing the CMU inmates in their ongoing civil rights case (Aref, et al. v. Holder, et al.). He says he’s noticed something about his clients:

“There is a tenfold over-representation of Muslim prisoners at the CMUs,” he says. “So 6 percent of the national prison population is Muslim, and somewhere in the neighborhood of between 66 and 72 percent of prisoners at the CMUs are Muslim.”

Harley Lappin, who leads the Bureau of Prisons, described the special units to Congress in 2009.

“You’ve got a second tier where we don’t have to have them as restricted, but we want to control their communications,” Lappin told members of the U.S. House of Representatives. “They are housed in Communications Management Units where we can target, again, communication, both written and verbal, and oversee visits more adequately than in our general population facilities.”

The unit at Terre Haute includes open cells, an outdoor basketball court and a dining room with checkerboards painted on some of the tables, according to Ken Falk, a lawyer at the American Civil Liberties Union in Indiana. He is one of the few people to see inside the unit at Terre Haute and is representing several inmates in a lawsuit (Arnaout et al. v. Warden) that alleges that the Communications Management Unit violates their religious rights.

He says Muslim inmates are allowed to do all kinds of things together, except pray. That, he says, is breaking a law known as the Religious Freedom Restoration Act. The law requires the federal government to follow the least burdensome approach when it comes to peoples’ religious faith and practice.

“The problem from our perspective in the CMU is that the prisoners are out anyway and they’re allowed to engage in all sorts of activity, and they’re not allowed to engage in group prayer,” Falk says. “In fact, prisoners have been punished when two prisoners have gone back to their cells together to pray.”

Ed Ross, a spokesman for the Bureau of Prisons, didn’t want to comment on the court cases. He says the special units help make sure inmates are monitored at all times. The units are designed for people convicted of terrorism, prisoners who have dealt drugs or tried to recruit or radicalize others behind bars; and prisoners who have abused their communications privileges by harassing victims, judges and prosecutors, Ross says.

Terrorism experts say all those restrictions in the special units might minimize radicalization inside U.S. prisons. The Justice Department inspector general and some members of Congress say that has been a big problem in the past.

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.

In the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 (PDF), Congress purported to strip the prisoners of their rights, freezing the habeas litigation until June 2008, in Boumediene v. Bush (PDF), when, revisiting the prisoners’ circumstances, the Supreme Court ruled that the habeas-stripping provisions in the DTA and the MCA were unconstitutional, and granted the prisoners habeas rights for the second time.

How the habeas litigation began promisingly

In the wake of Boumediene, the prisoners secured a number of significant victories in the District Court in Washington D.C., beginning with 17 Uighurs, Muslims from China’s Xinjiang province, who had their habeas petition granted in in October 2008, and five out of six Algerians, kidnapped in Sarajevo and rendered to Guantánamo in January 2002, who had their petitions granted in November 2008.

Even with the low burden of proof imposed on the government by the court — requiring them only to demonstrate, “by a preponderance of the evidence,” that the prisoners seeking release were involved with al-Qaeda and/or the Taliban — the prisoners continued to secure victories in significant numbers. Over the next 13 months, as the District Court judges — discussing amongst themselves the necessary conditions for ongoing detention, and generally concluding that the government had to demonstrate that the prisoners in question were part of the “command structure” of al-Qaeda and/or the Taliban (in other words, that they were to some extent involved in taking orders) — ten prisoners won their petitions, while eight others lost.

Even with these impressive results for the prisoners, doubts remained about the wisdom of the Supreme Court’s decision not to question the assumptions in the legislation that authorized the detention of the prisoners in the first place — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks. This was because the AUMF — which authorized 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 September11,2001,” or those who harbored them — failed to distinguish between al-Qaeda (a terrorist group) and the Taliban (the government of Afghanistan in 2001, however reviled internationally).

The result of this classification failure was that most of the eight prisoners who lost their habeas petitions were not accused of having any involvement with terrorism, but were, instead, nothing more than low-level Taliban foot soldiers (and in one case, a cook), who had been in Afghanistan fighting the Northern Alliance — or supporting that struggle — in the months before the 9/11 attacks, and had, therefore, only become embroiled in America’s war by default, when the conflict in Afghanistan morphed from a civil war into a “War on Terror” after the US-led invasion on October 6, 2001.

No one, however, showed any willingness to discuss whether it was fair to equate al-Qaeda with the Taliban, and to label both as a unique category of human being — “enemy combatants,” who, when that designation had been invented, were supposedly detainable forever, without any rights whatsoever. The only concession made by President Obama’s Justice Department was to drop the use of the term “enemy combatant,” which was a shrewd PR move, but did nothing to address the more fundamental problems outlined above.

How the D.C. Circuit Court fought back

However, while the first 15 months of habeas hearings resulted in 32 victories for the prisoners, against just nine for the government, and also, crucially, led to the eventual release of 25 of the men who had won their petitions, everything changed last year, beginning last January when the D.C. Circuit Court delivered a ruling on the first appeal resulting from the District Court’s decisions.

The case before the court was that of Ghaleb al-Bihani, the cook mentioned above, who had prepared food for Arab forces supporting the Taliban. Al-Bihani had lost his habeas petition during President Obama’s first month in office a year before, but when the Circuit Court considered his appeal, the panel of three judges not only upheld the original ruling, but two of them — Judge Janice Rogers Brown, supported by Judge Brett M. Kavanaugh — argued that the government had sweeping powers that should not be constrained by judges, claiming that it was “mistaken” for al-Bihani’s lawyers to argue that “the war powers granted by the AUMF and other statutes are limited by the international laws of war.”

This was too much for the third judge, Senior Circuit Judge Stephen F. Williams, who noted that his colleagues’ opinion was “hard to square with the approach that the Supreme Court took in Hamdi [v. Rumsfeld, a 2004 Supreme Court case regarding Guantánamo that established the government’s right to hold men detained under the AUMF].” Judge Williams quoted Justice Souter, who stated explicitly, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”

It was also too much for the Obama administration, which noted in a brief that “The Government interprets the detention authority permitted under the AUMF as informed by the laws of war,” and on August 31 last year, seven out of the nine judges ruling on an appeal of the original Circuit Court ruling upheld the decision regarding al-Bihani’s detention, but effectively dismissed the claims about the limits of the international laws of war.

This was important, but Judge Janice Rogers Brown and Judge Brett M. Kavanaugh were not alone in wishing to fundamentally challenge the decisions made by District Court judges. In another appeal in June last year — that of Adham Ali Awad, a Yemeni amputee who had been handed over to Afghan forces by al-Qaeda fighters besieged in a hospital in Afghanistan in December 2001, and had lost his habeas petition in August 2009 — three different judges (Chief Judge David B. Sentelle, Judge Merrick B. Garland and Judge Laurence H. Silberman) dismissed the “command structure” requirement  for detention accepted by the majority of the District Court judges, noting that it was not mentioned in the AUMF, and insisting that being “part of” al-Qaeda or the Taliban was sufficient to justify a prisoner’s ongoing detention.

Ths was a worryingly open-ended definition, of course, and it has, moreover, changed the course of the habeas litigation. Although four prisoners won their petitions between February and June 2010, and five prisoners lost (bringing the total to 36 victories for the prisoners, against 14 losses), just two prisoners have won their petitions since the Awad ruling, and the last seven rulings have all been in the government’s favor.

The latest victory for the government in the District Court — the case of Mashur al-Sabri

The last of these government victories — on February 5 — was in the case of Mashur al-Sabri (also identified as Mashour Alsabri), a 32-year old Yemeni, whose habeas petition was denied by Judge Ricardo Urbina. I have not yet had time to read Judge Urbina’s unclassified opinion (PDF) to analyze exactly how he reached his conclusion, but from the publicly available information about al-Sabri, it is clear that it would not have been difficult to conclude that he was “part of” al-Qaeda and/or the Taliban. As I explained in a profile of him in September:

According to the US authorities, al-Sabri traveled to Afghanistan in summer 2000, lived in Jalalabad for a year, and traveled on occasion to the Taliban lines at Bagram and Kabul. Quite what else he did is difficult to ascertain — not because there are no allegations, but because their trustworthiness is hard to gauge. According to various unidentified sources, in May 2001 he was working as a facilitator for new arrivals at two guest houses in Kabul, and was “well known and well respected as an administrator in the guest houses.” It was also noted that he “was said to facilitate the transfer of weapons and other supplies to the front lines,” and, most worryingly (or most outrageously, depending on your point of view), was accused of working for Osama bin Laden. According to the unidentified allegations, he was “believed to have sworn bayat to Osama bin Laden,” because he and others around him knew bin Laden’s travel dates and routes, and another “source” identified him as “a member of al-Qaeda,” because he was “following Osama bin Laden’s orders to keep the guest house up and running.”

These latter claims look suspicious, as they increase his significance through nothing more than innuendo, and without them, we are left, as so often, with a man consigned to indefinite detention at Guantánamo on the basis of nothing more than being involved, to some extent, in the Taliban’s military campaign against the Northern Alliance in the year before the 9/11 attacks.

As I mentioned above, this kind of role — as, essentially, an insignificant foot soldier in a military conflict in Afghanistan that preceded the 9/11 attacks, and that had nothing to do with international terrorism — dominates the cases of the men who have lost their habeas petitions, and I find it hard to see how they can be judged as any kind of success, as all they do is reinforce the notion that, in its “War on Terror,” the Bush administration successfully destroyed the Geneva Conventions, creating a parallel quasi-legal world in which soldiers are held indefinitely as “enemy combatants” rather than as prisoners of war.

In contrast, the few men in Guantánamo who are actually accused of involvement in terrorist activities either await federal court trials that may or may not ever happen, or are cutting plea deals in Military Commission trials that, if the administration honors its obligations, will see them released in the next few years, while the foot soldiers, the cook, a medic and a handful of pointessly detained Afghans rot in Guantánamo forever.

A legally flawed victory for the government in the D.C. Circuit Court – the case of Saeed Hatim

This is, moreover, not the end of the story. On February 15, a panel of Circuit Court judges took another step into dubious legal territory when they vacated the successful habeas petition of Saeed Hatim, another Yemeni, who had won his habeas petition in December 2009. As I explained at the time:

Hatim told his interrogators that he wanted to find a way to fight in Chechnya but concluded that he needed to train in Afghanistan. However, although he admitted attending the al-Farouq camp (associated with Osama bin Laden in the years before 9/11), he said that he “did not like anything about the training,” that he faked a fever so that he could leave the camp, and, after some time hanging around behind the Taliban’s front lines, made his way to the Pakistani border, where he surrendered to the Pakistani police, and was then handed over to US forces.

In granting Hatim’s habeas petitiion, Judge Ricardo Urbina refused even to analyze whether the government’s supposed evidence — which came almost entirely from Hatim’s own statements — demonstrated sufficient involvement in al-Qaeda and /or the Taliban to justify his detention, ruling instead that everything he had said was unreliable because of his unrefuted claims that he was subjected to torture and abuse in the US prison at Kandahar before his transfer to Guantánamo. In his unclassified opinion, Judge Urbina wrote:

Hatim’s unrefuted allegations of torture undermine the reliability of the statements made subsequent to his detention at Kandahar. Thus, the government faces a steep uphill climb in attempting to persuade the court that the petitioner’s detention is justified based on the allegation that he trained at al-Farouq, given that the sole evidence offered in support of that allegation is tainted by torture.

In addition, as I noted at the time:

Judge Urbina added that, even if Hatim had attended al-Farouq, there was “scant evidence” that he “actually participated in al-Qaeda’s command structure by receiving and executing orders,” and that this interpretation was reinforced by his departure from the camp, and also because no third-party witness “indicate[d] that [he] was even seen at al-Farouq, much less that he was seen following orders on al-Qaeda’s behalf.”

He then proceeded to dismiss claims that Hatim had participated in al-Qaeda’s command structure either behind the front lines or in the guesthouses in which he had stayed, concluding that “the government has offered the court an inherently flawed justification for detention.”

The only other information offered by the government as evidence — that Hatim had fought at Tora Bora, a showdown in December 2001 between al-Qaeda and their Taliban supporters, and a proxy Afghan army fighting for the US with back-up from US Special Forces — was also dismissed by Judge Urbina, on the basis that the prisoner who had made this statement “has exhibited an ongoing pattern of severe psychological problems while detained at GTMO,” and had, in fact, made false statements against 60 prisoners in total, which, despite their unreliability, are regularly used by Justice Department lawyers in the habeas litigation, where, to their credit, several District Court judges have picked up on them — and on statements made by other unreliable witnesses — and have dismmissed them outright.

However, when the government’s appeal came before the Circuit Court, Hatim was confronted by a panel of judges that included Senior Judge A. Raymond Randolph, another judge noted for his aggressive defense of the government’s right to hold whoever it wishes to hold, without much in the way of proof.

In July last year, Judge Randolph led a panel of judges that reversed the successful habeas petititon of another Yemeni, Mohammed al-Adahi, who had won his petition in August 2009. Al-Adahi, who was seized in Pakistan, had accompanied his sister to Afghanistan to marry a man who was undoubtedly connected to al-Qaeda, but Judge Gladys Kessler ruled that, despite this, al-Adahi himself had no connection to al-Qaeda, and granted his habeas petition. As I explained when al-Adahi’s successful petition was reversed:

There was abundant evidence to suggest that she was correct — primarily that he had never previously left Yemen, where he had a respectable job, that he was obliged to accompany his sister, who was not allowed to travel alone, and that he was kicked out of a training camp during his stay because he broke the rules by smoking — but when the government’s appeal came before a panel including Judge Randolph (notorious for endorsing every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court), the Court reversed Judge Kessler’s ruling, with Judge Randolph describing it as “manifestly incorrect — indeed startling.”

In his ruling, Judge Randolph personally impugned Judge Kessler’s integrity, and also stated his belief that the low standard of proof required in the habeas cases — whereby the government only has to support its argument “by a preponderance of the evidence” — was actually too high. Judge Randolph’s intervention was not a legal requirement, but was still significant, as SCOTUSblog explained, noting that “even if the Justice Department did not now take the Circuit Court’s hint to propose a ‘some evidence’ standard for use in the remaining Guantánamo cases, the way the panel interpreted the preponderance standard would seem to ease the government’s burden of proof significantly.”

With Judge Randolph exercising his baleful influence, it was unsurprising that the Circuit Court vacated Saeed Hatim’s successful petittion, ordering it to be sent back for reconsideration by the District Court. With the case of Adham Ali Awad as a precedent, it was clear that Judge Urbina had not specifically addressed the question of whether Hatim had been “part of” al-Qaeda and/or the Taliban, rather than being involved in the “command structure” of either organization, although, in effect, it should have made no difference, as Judge Urbina refused to credit any of the government’s supposed evidence because of Hatim’s credible allegations that he was tortured.

The Circuit Court erroneously claims that “those who purposefully and materially support” al-Qaeda or the Taliban can be detained

However, in vacating Hatim’s successful petition, the Circuit Court went one step further, drawing on the Circuit Court’s January 2010 ruling in the case of Ghaleb al-Bihani to argue that even a demonstration that a prisoner was “part of” al-Qaeda and/or the Taliban was too high a hurdle. As the judges explained (PDF):

The district court ruled that the military could detain only individuals who were “part of” al-Qaida or the Taliban; and that Hatim did not fit that description. That ruling is directly contrary to Al-Bihani v. Obama, which held that “those who purposefully and materially support” al-Qaeda or the Taliban could also be detained. Hatim admits the error, but says it was harmless. We cannot see how.

Personally, I cannot see how this fundamentally undermines Hatim’s successful petition, as no evidence has been provided to overturn Judge Urbina’s conclusion that everything Hatim admitted was tainted by torture, but the ruling is deeply disturbing because, as the lawyer Steve Vladeck explained on his blog:

[T]he key here is the notion that anyone who “purposefully and materially support[s]” al-Qaeda or the Taliban can be detained indefinitely, whether or not they’re in any way affiliated with either group, and whether or not they come anywhere near the definition of a “belligerent” under international humanitarian law.

This is indeed troubling, as it moves the litigation far beyond questions about whether or not it is justifiable to hold soldiers indefinitely at Guantánamo, and takes us back to the darkest days of the Bush administration, when, in a memorable exchange in a US court, Deputy Associate Attorney General Brian Boyle responded to a question by Judge Joyce Hens Green — “If a little old lady in Switzerland gave money to a charity … and the money was passed to al-Qaeda, could she be held as an enemy combatant?” — by replying, “She could. Someone’s intention is clearly not a factor that would disable detention.”

In his blog post, Steve Vladeck dissected the rather complicated legal reasons why the Al-Bihani panel’s claim that “those who purposefully and materially support” al-Qaeda or the Taliban can be detained is wrong, but he was, understandably, concerned that other judges in the Circuit Court appeared to be unconcerned by the actions of a minority of their colleagues, asking:

As it becomes increasingly clear that a small but vocal minority of the D.C. Circuit (Judges Brown, Kavanaugh, and Randolph, in particular) will apparently find any way in any case to adopt holdings that (1) go beyond even what the government is asking for in these cases … and (2) are indefensible as a matter of law and logic, is anyone else on that court going to notice?

How the mainstream media are asleep, and the Justice Department is appealing successful Yemeni petitions for nakedly political reasons

As the dreams of habeas as a remedy for any of the Guantánamo prisoners now lie in ruins, this is a valid and important question, but its scope should be larger. Why, for example, is no one in the mainstream media concerned by these decisions that are “indefensible as a matter of law and logic,” and why is the Justice Department, under Attorney General Eric Holder, also unconcerned?

The answer to the first question appears to be that the mainstream media in the US is either unwilling or unable to address the importance of the Guantánamo habeas litigation, and the answer to the latter would have to be that Holder doesn’t care — and that, by extension, President Obama doesn’t care either.

The blunt truth, sadly, is that, throughout Obama’s Presidency, Eric Holder has failed to provide any advice or direction to the lawyers working on the Guantánamo habeas cases, allowing them to behave as though it was business as usual with Bush still in power. Ridiculous cases were aggressively pursued by government lawyers in the District Court in 2009, leading to several high-profile humiliations — in, for example, the cases of Mohammed El-Gharani, Alla Ali Bin Ali Ahmed, Abdul Rahim al-Ginco, Mohamed Jawad and Fouad al-Rabiah.

In the last year, as the Circuit Court’s most extreme judges have been pursuing their poisonous agenda, the Justice Department has shown no willingness to fight back (except on the point about the constraints of the international laws of war in Al-Bihani), and, in fact, seems to be delighted to have discovered that the Circuit Court will grant every government appeal that comes its way.

What makes this even more worrying is the perception that the Justice Department is not even necessarily appealing successful petitions on the basis of their merits, but is pursuing them with a political aim. Since last January, when President Obama announced a moratorium on releasing any Yemenis from Guantánamo — in response to the hysteria that greeted the news that Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, had been recruited in Yemen — every successful habeas petition by a Yemeni (with the exception of Mohammed Hassan Odaini, a student whose clearly mistaken detention was picked up by the mainstream media) has been appealed.

This seems deeply suspicious to me, as the government has not only appealed the successful petition of Saeed Hatim, after Judge Urbina put forward a coherent argument that the entire case against him was dependant upon his torture, and on the testimony of a worthless witness, and that of Mohammed al-Adahi, whose guilt would seem to rest solely on the marriage of his sister, but has also appealed the successful petition of Adnan Farhan Abdul Latif, who was cleared for release under the Bush administration, has severe mental health problems, and has attempted to commit suicide on a number of occasions.

Latif won his habeas petition after a hearing in which the government failed to demonstrate that he had lied about traveling to Pakistan, and then Afghanistan, in search of cheap medical treatment, but as with Saeed Hatim, Mohammed al-Adahi, and others Yemenis still held after winning their petititons, it seems that political expediency, rather than any notions of justice, is driving their ongoing detention, with a handful of rogue judges in the D.C. Circuit Court allowed to dictate the sort of detention policy that, in Guantánamo’s tenth year of operations, could have come straight out of briefings with George W. Bush and Dick Cheney at the height of the arrogance, disdain for the law and paranoia that informed the unique, and uniquely disturbing detention policies at Guantánamo.

That this is still happening now — and happening under President Obama and Eric Holder — ought to be a cause for alarm, and a wake-up call for the international community to redirect its attention to Guantánamo, if, as it appears, the United States itself has abandoned all notions of fairness and justice when it comes to the closure of the prison.

Note: For details of all the habeas cases ruled on in the US courts, see the dedicated page, Guantánamo Habeas Results: The Definitive List, which is regularly updated when new developments are announced.

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 and Twitter). 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), 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 Cageprisoners.