Throughout this period in which I have been studying Shaker’s story (for the last six years), it has been clear that there was no good reason for Shaker Aamer to be held. He was told in spring 2007 that he had been cleared for release by the Bush administration, and in August 2007 Gordon Brown, taking over from Tony Blair as Prime Minister, requested his return along with the other British residents.

Nevertheless, he was not freed, and with a new President in the US and a new government in the UK it was not initially known what his status was as the 10th anniversary of the opening of Guantánamo approached. However, two recent discoveries have ensured that, on the 10th anniversary of Shaker’s arrival at Guantánamo, there are no obstacles to his immediate release, however much representatives of the US or UK governments may pretend otherwise.

Firstly, it was revealed, on December 1, in a letter to Congress from four British MPs — Jeremy Corbyn, John Leech, Caroline Lucas and Michael Meacher — that Shaker had been “cleared for transfer out of Guantánamo” as a result of the review of all the remaining prisoners’ cases that was conducted throughout 2009 by the Guantánamo Review Task Force, established by President Obama when he came into office. The document that contained that information also informed him, “The US government intends to transfer you as soon as possible.” This had been presumed, but it had never been spelled out explicitly before.

The enormously significant confirmation that Shaker has been “cleared for transfer out of Guantánamo” for at least two years was followed by the passage of the National Defense Authorization Act, which contained another important lifeline for Shaker. This is not generally well known, because the NDAA is an otherwise dispiriting piece of legislation, in which lawmakers authorised mandatory military custody for anyone accused of being a terrorist with ties to al-Qaeda, and also insisted that Guantánamo prisoners cannot be released if there is a risk of them ever posing a threat to the US, and cannot be released to any country in which a single ex-prisoner has been accused of engaging in activities against the US.

However, as my colleague Tom Wilner, who was Counsel of Record for the Guantánamo prisoners in their cases before the Supreme Court in 2004 and 2008, explained in a recent article for the new “Close Guantánamo” campaign (which I also posted here), the NDAA also contains a provision allowing the administration to bypass the Congressional obstructions regarding the release of prisoners from Guantánamo. As he explained, Section 1028 of the NDAA explicitly allows the Secretary of Defense, in consultation with the Secretary of State, to waive the requirement to satisfy the onerous conditions imposed by Congress if the administration want sot release prisoners. As Tom proceeded to explain:

Those waiver provisions clearly give the Administration both the legal authority and the practical ability to transfer detainees from Guantánamo to their home countries. The question is no longer whether the Administration has the authority to transfer detainees home but whether it has the political courage to do so.

The obvious prisoner to be released first would be Shaker Aamer, because his home is the UK, which has been the staunchest of allies in the “war on terror,” and remains one of America’s closest allies. In the hope of bringing all excuses to an end — both from the UK and from US, which “will not risk releasing Shaker Aamer” before the Presidential election in November, because, according to an official who spoke anonymously to the Observer, “We’ve taken enough hits from the right; we can’t risk any more” — there are three protests in the UK on Saturday (in London), on Sunday (in Reading) and on Tuesday (also in London), where campaigners will be raising these points in the hope of exerting pressure on both governments, and, I hope, will also begin to establish a campaign on both sides of the Atlantic to bring Shaker’s unacceptable imprisonment to an end, and to also provide hope that some of the other 88 prisoners cleared for release but still held will also be released.

The details are below:

Saturday February 11, 12 noon: Free Shaker Aamer March and Meeting in Battersea. Assemble outside Northcote Road Baptist Church, Northcote Road, London, SW11 6DB.
This event is organised by the Save Shaker Aamer Campaign, which urges supporters to “Join the Guantánamo Chain Gang,” and explains, “By February 2012, British Resident Shaker Aamer will have spent ten long years of torture and abuse in Guantánamo, despite being cleared for release in 2007. Join the Guantánamo Chain Gang walk through Shaker’s home area of Clapham Junction & Battersea. We will wear orange prison jumpsuits, chains and hoods and very slowly walk through the area chained together, ending up at Battersea Islamic Culture & Education Centre.”
At 2.15 pm, the meeting will begin at the Islamic Centre, chaired by David Harrold, where a representative of the legal action charity Reprieve, freelance investigative journalist Andy Worthington and Joy Hurcombe, the chair of the Save Shaker Aamer Campaign, will speak. Shaker’s MP, Jane Ellison, has also been invited, and it is hoped that there will also be a screening afterwards of “You Don’t Like the Truth: 4 Days Inside Guantánamo,” the documentary film about former child prisoner Omar Khadr which I reviewed on TV here.
For further information, contact Ray Silk of the SSAC on 07756 493877 or email.

Sunday, February 12, 2012, 2 pm: Free Shaker Aamer Protest, Reading. In the town centre, outside Marks & Spencer, Broad Street, Reading.
This event has been organised by Reading Save Shaker Aamer Campaign. See the Facebook page, and for further information phone 07816 665629 or email.

Tuesday February 14, 2 pm: Free Shaker Aamer Protest, US Embassy, 24 Grosvenor Square, London, W1A 2LQ.
To mark the 10th anniversary of Shaker Aamer’s arrival at Guantánamo, campaigners for his release will march round Grosvenor Square and wlll hand in cards and petitions for President Obama, which will say, “Dear President Obama, we would love you to release British resident Shaker Aamer, held without justice in Guantánamo for ten years to this day, cleared but not free. Bring him home now. End his torture and abuse — give him back his life.”
Kate Hudson, the chair of CND, and Joy Hurcombe, the chair of the Save Shaker Aamer Campaign have confirmed they will speak outside the US Embassy, and other speakers are expected.
For further information, contact Ray Silk of the SSAC on 07756 493877 or email.

If you’re in London or Reading, please come along and show your support!

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.

I discussed these provisions in a number of articles — most recently in an article entitled, “A Tired Obsession with Military Detention Plagues American Politics” — in which I wrote about the shameful provisions requiring the mandatory military custody, without charge or trial, of anyone allegedly associated with al-Qaeda, and also wrote about the provisions preventing the release of prisoners from Guantánamo, which have stopped anyone being released in the last year.

In addressing concerns about the NDAA, I made a point of stressing that, although it is important that criticism should continue to be directed at lawmakers for subverting the entire basis of America’s foundation as a country based on the rule of law with their military detention provisions (for which they should all be hounded out of office), and although it is also of significance that the restrictions on releasing Guantánamo prisoners are based on fearmongering for nakedly political reasons, two other details should not be overlooked.

The first is that, in all of the discussions about the mandatory military detention provisions in the NDAA, in which there was great anxiety that the provisions would apply to US citizens, there was little mention of the fact that, without Guantánamo, there would have been no basis for lawmakers to indulge their dangerously unconstitutional desires, and that those opposed to the provisions should therefore also direct their energies to the closure of Guantánamo.

The second reason, and one that the attorney Tom Wilner — Counsel of Record for the Guantánamo prisoners in their cases before the Supreme Court in 2004 and 2008 — was particularly concerned to explain while I was with him in Washington D.C. two weeks ago, is that another provision explicitly allows the administration to release prisoners without Congressional approval. Below, I cross-post Tom’s important commentary about this, which was first published yesterday on the website of the “Close Guantánamo” campaign, for which we are both members of the steering committee.

It is, I believe, extremely important for this to be noted by those who wish to see Guantánamo closed, because it provides a possibility that has been otherwise overlooked, and a means whereby campaigners can legitimately push for prisoners to be released. After all, as the “Close Guantánamo” campaign notes in its mission statement (signed by retired military personnel, a retired judge, lawyers and journalists), over half of the prisoners — 89 of the 171 men still held — have been cleared for release for more than two years, since the President’s own Guantánamo Review Task Force issued its recommendations about the disposition of the remaining prisoners, and some were first cleared for release under President Bush as long as as 2004. The campaign is also stressing that over half the prisoners have been cleared for release in a petition on the White House’s “We the People” website calling for President Obama to honor his promise to close the prison, for which 25,000 signatures are needed by February 6, to secure a response.

Please read Tom’s analysis below, and then let’s start mobilizing for the release of these 89 men who have effectively spent the last two years as political prisoners.

Legal Analysis — Section 1028, National Defense Authorization Act of 2012
By Tom Wilner, Close Guantánamo, January 25, 2012

The recently enacted National Defense Authorization Act of 2012 (the “NDAA”) does a number things that seriously threaten civil liberties. In one area, however, the NDAA significantly eases current restrictions. It gives the Obama Administration both the legal authority and the practical ability to transfer detainees from Guantánamo back to their home countries.

Prior law put significant hurdles in the way of transferring detainees from Guantánamo. It effectively blocked the transfer of any detainee who was not ordered released by a court or released pursuant to a prior plea agreement in a military commission case. Other than in those circumstances, the law prevented a detainee from being transferred (i) to any country if any detainee had previously been transferred to that country and had subsequently engaged in any terrorist activity (a “recidivist country”) or (ii) to any other country unless the Secretary of Defense issued a certification personally “ensur[ing] that the individual [transferred] cannot engage or reengage in any terrorist activity.” The general counsel of the Department of Defense had ruled that it was simply not possible for anyone to provide such a personal blanket assurance. As a result of these restrictions, no detainee has been transferred from Guantánamo since these laws were enacted except pursuant to a court order or a plea agreement.

Section 1028 of the NDAA changed the law and eased the transfer requirements. Although that section of the new law retains essentially the same certification requirements mentioned above, it now explicitly allows the Secretary of Defense in consultation with the Secretary of State to waive those requirements by finding:

[if] it is not possible to certify that the risks … have been completely eliminated, [that] the actions to be taken … will substantially mitigate such risks with regard to the individual to be transferred; [and, in the case of the recidivism provision,] the Secretary has considered any confirmed case in which an individual who was transferred to the country subsequently engaged in terrorist activity, and the actions to be taken … will substantially mitigate the risk of recidivism with regard to the individual to be transferred and [that] … the transfer is in the national security interests of the United States.

Those waiver provisions clearly give the Administration both the legal authority and the practical ability to transfer detainees from Guantánamo to their home countries. The question is no longer whether the Administration has the authority to transfer detainees home but whether it has the political courage to do so.

Note: For another take on this important waiver provision, see this letter from 15 retired admirals and generals to President Obama, urging him “to transfer Guantanamo detainees who have been cleared for release to their home or to third countries, an option that is available to him under new guidelines contained in the 2012 National Defense Authorization Act,” as Human Rights First explained in a press release to accompany the release of the letter.

In the letter, the retired admirals and generals state:

In the 2012 National Defense Authorization Act, Congress authorized new guidelines for transferring detainees out of Guantanamo. Under these guidelines, your administration can transfer detainees cleared for release to their home or to third countries if the Secretary of Defense issues a waiver in the interest of our national security demonstrating that measures will be taken to substantially mitigate the risk of transfer. We ask that you direct your administration to exercise this authority immediately and fully to demonstrate your good faith commitment to closing Guantanamo. Doing so is the first step among many needed to finally close this dark chapter in our history.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

That all changed when the Bush administration threw out the Geneva Conventions, equated the Taliban with al-Qaeda, and decided to hold both soldiers and terror suspects as “illegal enemy combatants,” who could be imprisoned indefinitely without charge or trial, and with no rights whatsoever.

The Bush administration’s legal black hole lasted for two and a half years at Guantánamo, until, in Rasul v. Bush in June 2004, the Supreme Court took the unprecedented step of granting habeas corpus rights to prisoners seized in wartime, recognizing — and being appalled by — the fact that the administration had created a system of arbitrary, indefinite detention, and that there was no way out for anyone who, like many of the prisoners, said that they had been seized by mistake.

This was not the end of the story, as the Bush administration fought back, Congress attempted to strip the prisoners of their habeas rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 (PDF), and the Supreme Court had to revisit the prisoners’ cases in June 2008, in Boumediene v. Bush, reiterating that they had habeas corpus rights, and that those rights were constitutionally guaranteed.

Unfortunately, although this ruling enabled some of the Guantánamo prisoners to secure their release via the US courts, by having their habeas corpus petitions granted, the appeals court in Washington D.C. (the D.C. Circuit Court) has been fighting back, gutting habeas corpus as a remedy by insisting, ludicrously, that the government’s evidence, however obviously unreliable, should be given the presumption of accuracy.

While this continues to be fought over, the bigger problem is that the entire rationale for Guantánamo has never been adequately challenged. The basis for holding prisoners is the Authorization for Use of Military Force, passed the week after the 9/11 attacks, which authorizes the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

in June 2004, while granting the Guantánamo prisoners habeas rights, the Supreme Court also confirmed, in Hamdi v. Rumsfeld, that the AUMF allows prisoners to be detained until the end of hostilities, thereby confirming the AUMF as an alternative to the Geneva Conventions, without anyone in a position of authority being required to explain why the Geneva Conventions no longer apply to soldiers, and why terror suspects are being held as “warriors,” rather than as criminals.

With this fundamental misconception — or this warped reshaping of the rules governing detention — which was at the heart of the Bush administration’s “war on terror,” and is confirmed in the continued reliance on the AUMF by all three branches of the government, it is no wonder that it has become impossible to even mention the fact that wartime detentions used to accord with the Geneva Conventions, and it has also become impossible for advocates of federal court trials for criminals to win out over those calling for military commission trials instead, even though hundreds of terror suspects have been successfully prosecuted in federal courts in the last ten years, as opposed to just six in military commission trials.

The result of this unilateral rewriting of the rules governing wartime detentions is that soldiers remain held at Guantánamo where they are lazily, but dangerously regarded as terrorists, and the wartime prisoners held in actual combat zones — at Bagram, for example — are not held according to the Geneva Conventions, but are detained arbitrarily, and are then subjected to invented review boards so that the military can decide what to do with them. This ought to be a cause for alarm, but it is apparently taken for granted.

In addition, the result of the insistence that terror suspects must not be tried in federal courts has had far-reaching effects that, in the last few weeks, have been causing great consternation to libertarians and liberals alike.

On the face of it, this consternation is well-founded. In provisions inserted by Congress into the 2012 National Defense Authorization Act, lawmakers insisted on creating legislation that makes it mandatory for terror suspects to be held in military custody, without charge or trial, and not to be allowed anywhere near the federal court system.

The mere fact that lawmakers could have worked themselves up into enough of a frenzy to pass this legislation is profoundly depressing, of course, but as Marty Lederman and Steve Vladeck explained in an article for the Lawfare blog on December 31, intense negotiations between the administration and Congress, with input from numerous deeply concerned groups and individuals, succeeded in watering down the intent behind this provisions so that it is not really appropriate for critics to wail that the NDAA will allow Americans to be held indefinitely in military custody. As they explained:

[S]ection 1022 purports to establish a presumption in favor of indefinite military detention, rather than criminal arrest and prosecution, for some future foreign al-Qaeda suspects. In the President’s words, it is in this respect “ill-conceived and will do nothing to improve the security of the United States,” and “is unnecessary and has the potential to create uncertainty.” Fortunately, amendments adopted late in the legislative process … will, we think, ensure that section 1022 is mostly hortatory, and will in practice allow the President to adhere to his commitments that “suspected terrorists arrested inside the United States will — in keeping with long-standing tradition — be processed through our Article III courts, as they should be”; that “our military does not patrol our streets or enforce our laws — nor should it”; and that “when it comes to US citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”

Even so, as Marty Lederman and Steve Vladeck also explained, drawing on comments made by Raha Wala of Human Rights First, “the very existence of section 1022 might give a future Administration a slight measure of political cover if it decides to reverse President Obama’s policy and begin to detain in military custody persons such as another Abdulmutallab, who are captured in the United States.”

This is a reference to Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, whose recent trial and successful conviction confirmed that the advocates for military custody are driven not by common sense but by irrational fears — or cynical fearmongering. The courts are perfectly capable of safely and effectively prosecuting terror suspects, and lawmakers’ attempts to insist otherwise, if left unchallenged, were likely to have been dangerously counterproductive rather than helpful.

Nevertheless, while obvious disaster appears to have been averted, the huge outpouring of alarm regarding the perceived plan to imprison Americans indefinitely without charge or trial ignores two fundamental issues that still need addressing: firstly, that President Obama has shown himself more than willing to dispose of US citizens he regards as troublesome not by imprisoning them, but by assassinating them in drone strikes; and, secondly, that the foreign victims of the indefinite detention that lawmakers have shown themselves so desperate to revive still need Americans to care about their plight, to bring to an end the unjust situation that has existed for the last ten years, and to cut off the possibility that lawmakers, or the executive branch, can decide in future to revisit these dreadful policies and to revive them again.

As Marty Lederman and Steve Vladeck noted, drawing on an article in the New York Review of Books by David Cole:

David Cole is surely correct that Subtitle D (“Counterterrorism”) [PDF] of the NDAA contains some very troubling provisions — especially sections 1026 and 1027, which continue the deeply unfortunate and counterproductive authorities in current law prohibiting the use of funds to build a facility in the US to house GTMO detainees and to transfer any such detainees to the US for any reason, including criminal trial; and section 1028, which continues the current statutory requirement that the Secretary of Defense must make onerous certifications regarding the receiving nation’s security measures before any GTMO detainee can be transferred to another country. These provisions will continue to prevent the closure of the detention facility at Guantánamo, notwithstanding the President’s view, which we share, that “the prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.”

These are valid points indeed, and with the 10th anniversary of the opening of Guantánamo taking place next week, it is important for US citizens to recall that the fount of the recent hysteria directed, initially, at Americans as well as foreigners, is the enduring legacy of the Bush administration at Guantánamo, where these dark desires have been inflicted on foreign Muslims for the last ten years, and where the will to close this dangerous aberration is lacking in both the administration and in Congress.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

The military custody provisions were conceived, in a secretive manner, by the Senate Armed Services Committee, which also updated previous provisions preventing the closure of Guantánamo. This was achieved through two measures: banning the use of funds to purchase or adapt any other prison to hold the 82 prisoners that the Obama administration has said it wants to hold (for trial or indefinite detention), and imposing conditions on the transfer of any of the other 89 prisoners that the administration does not want to hold.

These designations were made through the careful deliberations of the interagency Guantánamo Review Task Force established by President Obama, which included career officials and lawyers not only from various government departments, but also from the intelligence agencies. However, while critics on the left and the right have long criticized any plan to move prisoners from Guantánamo to the US mainland, Congressional restrictions on releasing prisoners have become progressively more onerous over the last two years, since lawmakers first voted to prevent Guantánamo prisoners from being brought to the US mainland for any reason, except to face a trial.

That was followed by a ban on bringing prisoners to the US mainland for any reason, preventing federal court trials for any of the Guantánamo prisoners (and explicitly preventing the planned trial of Khalid Sheikh Mohammed and four of the men accused of involvement in the 9/11 attacks), and lawmakers then began to impose restrictions on the release of prisoners regarded as dangerous.

A year ago, lawmakers prevented the President from releasing any prisoner “unless Defense Secretary Robert M. Gates signs off on the safety of doing so,” as the New York Times described it, and this in turn, led to a section in the latest legislation insisting that no transfer out of Guantánamo will be allowed “if there is a confirmed case of any individual who was detained at [Guantánamo] who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.”

My problems with the Guantánamo provisions of the NDAA are the same as they were nearly a year ago, when David B. Rivkin Jr. and Lee A. Casey, lawyers who served in the Justice Department under Ronald Reagan and George H.W. Bush, identified the provisions as unconstitutional in an op-ed in the Wall Street Journal. The latest brake on transfers to countries with even a solitary claim of recidivism is monstrously disproportionate, as it is a horrible example of “guilt by nationality.” Imagine imposing the same restrictions on prisoners in the US domestic prison system, who couldn’t ever be freed if there was a single act of recidivism recorded by a released prisoner, and it becomes apparent that it only works when applied with a broad brush of prejudice against entire countries.

Despite the fact that the sections on Guantánamo are designed to prevent the closure of the prison — which is shameful as the 10th anniversary approaches of the opening of this experimental facility devoted to arbitrary detention — most commentators have overlooked these sections of the NDAA and have focused instead on the military custody provisions.

There are, to be fair, good reasons for this. As Sheldon Richman explained on Reason.com, for example:

Permit me to state the obvious: The government shouldn’t be allowed to imprison people indefinitely without charge or trial. It shouldn’t be necessary to say this nearly 800 years after Magna Carta was signed and over 200 years after the Fifth Amendment was ratified.

Yet this uncomplicated principle, which is within the understanding of a child, is apparently lost on a majority in the US Senate. Last week the Senate voted … to authorize the executive branch to use the military to capture and hold American citizens indefinitely without trial — perhaps at Guantánamo — if they are merely suspected of involvement with a terrorist or related organization — and even if their suspected activity took place on US soil.

Sheldon Richman and other commentators are correct to sound the alarm bells, although it should be noted that the Senate’s actions are a logical extension of fundamental problems at the heart of the “war on terror,” which have never been adequately addressed.

On September 10, 2001, terrorists were criminals, and had been successfully prosecuted as such in the US courts. Less than six weeks after the 9/11 attacks, for example, four men — Mohamed al-’Owhali, Khalfan Khamis Mohamed, Mohamed Odeh and Wadih el-Hage — were sentenced to life without parole for their roles in al-Qaeda’s bombing of two US embassies, in Kenya and Tanzania, on August 7, 1998.

However, when the Bush administration declared a “war” on al-Qaeda and the Taliban, two parallel worlds came into existence. In the first, federal court trials still took place for those accused of terrorism, but in the other, soldiers became terrorists, terrorists became warriors, and trials — if they were contemplated — were only to take place at Guantánamo, and were to be military trials.

As the Bush administration found its “war on terror” challenged — from Guantánamo to the CIA’s secret prisons, and from extraordinary rendition to arbitrary detention and torture — the programs were scaled back or shut down. Around two-thirds of the prisoners at Guantánamo were released, and the CIA’s secret prisons were closed when, in June 2006, the Supreme Court reminded the administration that all its “war on terror” prisoners were entitled to the baseline protections of Common Article 3 of the Geneva Conventions, which prohibit torture and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

For President Obama, Guantánamo has become largely a legacy issue, albeit one that he is in no hurry to deal with, having discovered that doing so would involve effort and principles. Instead, he has been content to rely on holding the remaining prisoners on the basis of the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, and has shown little appetite for the kind of custody issues that ended up causing difficulties for his predecessor. Instead, he has been seduced by drone killings and the assassination of enemies from afar, even US citizens, eliminated without due process.

For the Senate, however — and especially the lawmakers in the Armed Services Committee — the laws governing the detention of terrorists are an obsession, even though it is now over ten years since the 9/11 attacks, Osama bin Laden is dead, and most of al-Qaeda’s leaders have been killed (or, in a few cases, are in Guantánamo). Moreover, in all this time, the courts have continued to demonstrate that they are more than capable of trying terrorists, and are certainly more able than the military system at Guantánamo. Nevertheless, with this legislation, the Senate is trying to bring federal court trials for terrorists to an end, forever, in the face of widespread opposition, particularly from law enfacement officials, who are alarmed that the mandatory military detention of terror suspects will be dangerously counter-productive.

The answer to their concerns is simple. Return to the law as it existed pre-9/11, and prosecute terror suspects as criminals. But while that involves extradition, or trials in other countries, what it doesn’t involve is what those pushing for mandatory military custody of all terror suspects want — for terrorists to be warriors. They are not, and they never have been and never will be.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

The four sections are connected, as cheerleaders for the mandatory military detention of terror suspects want them to be sent to Guantánamo, and have done, if I recall correctly, at least since Umar Farouk Abdulmutallab, the failed Christmas plane bomber in 2009, was arrested, read his Miranda rights, and interrogated by the FBI. Recently, Abdulmutallab, who told his interrogators all they wanted to know without being held in military custody — and, for that matter, without being tortured, which is what the hardcore cheerleaders for military detention also want — was tried and convicted in a federal court.

Hundreds of other terror suspects have been successfully prosecuted in federal court, throughout the Bush years, and under Obama, but supporters of military custody like to forget this, as it conflicts with their notions, held since the aftermath of 9/11 and the Bush administration’s horrendous flight from the law, that terrorists are warriors. Underpinning it all is the Authorization for Use of Military Force (AUMF), the founding document of the “war on terror,” passed the week after the 9/11 attacks. This authorizes the President to pursue anyone, anywhere who he thinks was involved in the 9/11 attacks, and it is a dreadfully open-ended excuse for endless war whose repeal I have long encouraged, but which some lawmakers have been itching to renew, even after the death of Osama bin Laden, and the obvious incentives for the winding-down of the ruinous, decade-long “war on terror.”

The fundamental opposition to the provision for the mandatory military custody of terror suspects

Depressingly, when it came to passing the Act, the world was treated to the unedifying spectacle of lawmakers arguing about whether the existing law — the AUMF, plus the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld that it authorizes detention until the end of hostilities — actually applies to Americans, and whether, on that basis, this new legislation does too. Their compromise was that it would authorize whatever already exists, which only made them look rather stupid, frankly. For evidence, check out this comment from Sen. Carl Levin,  as mentioned in the New York Times. “We make clear that whatever the law is, it is unaffected by this language in our bill,” he said.

However, one of the even more extraordinary things about the Senate’s custody provisions is not only that they are a mangled, scrambled mess, but also that no one who will be required to obey them wants anything to do with them. The executive branch, the military, the FBI and the CIA — no one asked for this new policy. As Spencer Ackerman noted for Wired:

Defense Secretary Leon Panetta opposes the maneuver. So does CIA Director David Petraeus, who usually commands deference from senators in both parties. Pretty much every security official has lined up against the Senate detention provisions, from Director of National Intelligence James Clapper to FBI Director Robert Mueller, who worry that they’ll get in the way of FBI investigations of domestic terrorists.

Also opposing the bill’s unwanted provisions are Department of Defense General Counsel Jeh Johnson, Obama Counterterrorism adviser John Brennan, 16 former interrogators and counterterrorism professionals, and 26 retired military leaders who, on Tuesday, urged Senators to support an amendment by Sen. Mark Udall, backed by Sen. Jim Webb, to strip all the troublesome provisions from the legislation (and also see Sen, Udall’s eminently sensible Washington Post op-ed). Despite this, the Udall amendment was defeated by 61 votes to 37 (with 16 Democrats voting against the amendment — see the breakdown of votes here).

In addition, President Obama has threatened to veto the bill, although whether he will remains to be seen. The mandatory military custody provisions, after all, have a get-out clause, as Andrew Cohen noted for the Atlantic a month ago, when he wrote:

Section 1032, to be applied in concert with Section 1031, contains a mandatory detention requirement for anyone “determined” (by the military) to be a member of al-Qaeda or its affiliates. It allows the executive branch, however, to “waive” this requirement by having the “Secretary of Defense … in consultation with the Secretary of State and the Director of National Intelligence” submit to Congress a written certificate that the waiver is in the “national security interests of the United States.” The executive branch, in other words, would practically have to do a song-and-dance on Capitol Hill to prosecute a terror suspect in civilian court.

Obama, of course, is no great defender of due process, as he had Osama bin Laden killed in a Wild West style and also approved the execution without any kind of charge or trial of Anwar al-Awlaki, an American citizen, in Yemen, where he was producing irritating jihadist material in English on the Internet. However, it seems likely that his defense secretary, Leon Panetta, will indeed be forced to jump through hoops if the custody provisions are not removed.

I honesty find it hard to believe that these proposals even made it as far as they did, especially as Sen. Carl Levin was involved in drafting the legislation with the usual deranged suspects — Sens. John McCain, Lindsey Graham and Joe Liebermann — plus torture advocate Sen. Kelly Ayote, who attempted to specifically reintroduce torture as official US policy in her own deranged bill, which was recently defeated. Astonishingly, the Senate Armed Services Committee, where this toxic brew was created, conjured it up in secret, which did not go down well with some of the lawmakers’ colleagues. Although Senate Majority Leader Harry Reid initially found his spine and spoke up against it, he soon remembered that it is his job to cave in on matters of importance, which he duly did, although others were not so easily swayed.

Vermont Sen. Patrick Leahy, as Andrew Rosenthal explained in the New York Times, noted with horror that the provisions were “hashed out behind closed doors without consultation with his committee [he is the chairman of the Senate Judiciary Committee], or the Intelligence Committee, or the Defense Department, the FBI or the intelligence community.” In addition, as Andrew Cohen explained:

Leahy, and California’s Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, wrote Sen. Reid a letter requesting that the controversial provisions be removed from the NDAA. “We concur with the Administration’s view that mandatory military custody is ‘undue and dangerous,’” they wrote, “and that these provisions would ‘severely and recklessly undermine’ our Nation’s counterterrorism efforts.”

The provisions relating to Guantánamo and why they are also important

However, while a host of critics are lined up against the mandatory military custody aspects of the bill, far less attention, unfortunately, has been paid to the provisions preventing the closure of Guantánamo. As Andrew Cohen lamented a month ago, “I think Section 1034 [banning the use of any funds to buy an alternative prison] may be the worst of the lot — a triumph of fear and prejudice over pragmatic solutions. But it doesn’t appear to have raised the hackles of even those senators who are opposed to some of the other provisions. Go figure.”

Go figure, indeed. It may, perhaps, be slightly cynical of me to note that the story of Guantánamo involves foreigners and that Americans only wake up in any kind of numbers when legal monstrosities might apply to American citizens, but there does appear to be some truth in it. If it could be demonstrated that no American could possibly end up in mandatory military custody as a result of the Senate’s mad provisions, I would be prepared to wager that hardly any Americans would bat an eyelid.

As it is, I can only hope that the two sections relating to Guantánamo, and two other sections specifically criticized by the President’s advisors (in which Congress demanded detainee reviews from the executive branch) are subjected to a veto. To make it clear, Section 1033 (which ramps up unjustifiable restrictions already implemented by lawmakers) is entitled, “Requirements for certifications relating to the transfer of detainees at United States Naval Station, Guantánamo Bay, Cuba, to foreign countries and other foreign entities,” and it stipulates that no transfer out of Guantánamo will be allowed “if there is a confirmed case of any individual who was detained at [Guantánamo] who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.”

As noted above, Section 1034 (which repeats previous bans imposed by lawmakers) is entitled, “Prohibition on use of funds to construct or modify facilities in the United States to house detainees transferred from United States Naval Station, Guantánamo Bay, Cuba,” prevents the closure of Guantánamo by stopping the President from buying or modifying an alternative facility elsewhere, and then there are the two other provisions, both new, and both largely unnoticed.

Section 1035, entitled, “Procedures for periodic detention review of individuals detained at United States Naval Station, Guantánamo Bay, Cuba,” requires the Secretary of Defense “to submit a report to Congress for implementing the periodic review process” established in the executive order of March this year, which, outrageously, authorized the indefinite detention without charge or trial — but with periodic reviews — of 46 of the remaining 171 prisoners, on the unacceptable basis that they were too dangerous to be released, but that there was insufficient evidence to put them on trial.

Section 1036, entitled, “Procedures for Status Determinations,” states that, “Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107–40) for purposes of section 1031″ — meaning that it is supposed to establish, to the satisfaction of Congress, who will be subjected to mandatory military custody.

The response of the President’s Office, in its letter threatening a veto, spells out the administration’s opposition to these sections, and is of interest. The President’s advisors noted:

The certification and waiver, required by section 1033 before a detainee may be transferred from Guantánamo Bay to a foreign country, continue to hinder the Executive branch’s ability to exercise its military, national security, and foreign relations activities. While these provisions may be intended to be somewhat less restrictive than the analogous provisions in current law, they continue to pose unnecessary obstacles, effectively blocking transfers that would advance our national security interests, and would, in certain circumstances, violate constitutional separation of powers principles. The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.

Section 1034′s ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military’s ability to transfer its detainees as operational needs dictate.

Section 1035 conflicts with the consensus-based interagency approach to detainee reviews required under Executive Order No. 13567, which establishes procedures to ensure that periodic review decisions are informed by the most comprehensive information and the considered views of all relevant agencies.

Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense.

The President’s advisors concluded:

In short, the matters addressed in these provisions are already well regulated by existing procedures and have traditionally been left to the discretion of the Executive branch.

Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qaeda and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals.

This is not quite the end of the road for the NDAA, as it must now be consolidated with the version previously passed by the House of Representatives, which I wrote about here and here. However, it is almost certain that the President will soon be required to make clear what he thinks.

If Obama is wavering, as is his habit, I would suggest that he takes note of the fact that the election season is nearly upon us, and that, as we approach that frenzy of hype and hyperbole, he needs do something to make his progressive supporters remember why they might want to vote for him, rather than just hoping — or presuming — that they will not vote against him. In short, the President needs to veto this bill, and stand up for US justice, and the still-pressing need to close Guantánamo, rather than doing as he has so often on national security issues, and caving in to pressure.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

In a detailed explanation of the “expensive” and “inefficient” system at Guantánamo, retired Army Brig. Gen. Greg Zanetti, who was the prison’s deputy commander in 2008, said, “It’s a slow-motion Berlin Airlift — that’s been going on for 10 years.” While stationed at Guantánamo, the Herald noted, “he wrote a secret study that compared the operation to Alcatraz, noting that Attorney General Robert F. Kennedy had closed it in 1963 because it was too expensive.”

Zanetti, who is now a Seattle-based money manager, pointed out that everything “from paper clips to bulldozers” has to be flown in, or brought in by boat, and argued that the cost of running the prison “deserves a cost-benefit analysis.” He told Carol Rosenberg, “What complicates the overall command further is you have the lawyers, interrogators and guards all operating under separate budgets and command structures. It’s like combining the corporate cultures and budgets of Goldman, Apple and Coke. Business schools would have a field day dissecting the structure of Guantánamo.”

Brig. Gen. Zanetti’s analysis certainly ought to provide an opportunity for critics of Guantánamo, in the administration and in Congress, to fight back against the prison’s cheerleaders, who have pushed hard to keep the prison open and to thwart President Obama’s poorly conceived — and failed — promise to close the prison within a year of taking office.

However, what was not specifically mentioned in this analysis was how, when calculating whether it is acceptable to be spending over $800,000 a head to keep 171 prisoners at Guantánamo, the American people might be interested to know that, while the government intends to try (or has tried) 36 of these men, and has decided to hold 46 others without charge or trial, it does not wish to detain 89 others.

Two years ago, the Guantánamo Review Task Force, comprising career officials and lawyers from government departments and the intelligence agencies, reviewed the files of all the prisoners to work out what to do with them, and concluded that 89 of the 171 remaining prisoners should be released.

Last year, the cost of holding those 89 prisoners was $72,345,029.

If anyone is looking to save money, therefore, they might wish to examine why it is that these 89 men are still held, although they will discover that the answers do not reflect well on either the administration or Congress. Although all of these men were “approved for transfer” out of Guantánamo by the Task Force, 31 of them are still held because it is not safe for them to be repatriated, as they face the risk of torture in their home countries, or because Congress has blocked their release, and the rest are Yemenis, whose release has also been blocked — by the President and by Congress.

The details of the 31 men, who are from a variety of countries, are not entirely clear, because the administration has not publicly identified who has been “approved for transfer.” However, it is clear that this group includes the last five Uighurs (Muslims from China’s Xinjiang province), who won their habeas corpus petitions over three years ago, in October 2008.

Since then 12 other Uighurs have been released — in Bermuda, Palau and Switzerland — but the five remain because they refused the new homes they were offered, fearing that they would not be safe from the long reach of the Chinese government. No other country has offered to take them, and President Obama, his Justice Department, Congress and the Supreme Court have all made it clear that they have no desire to offer them — or any other refugee in Guantánamo — a home in the United States, the country that wrongly imprisoned them in the first place.

Others are from countries with dubious human rights records — Syria, for example — and others are almost certainly victims of a restriction included by Congress as part of the 2011 National Defense Authorization Act, in which, as the Washington Post explained in an article last week, lawmakers “demanded that the defense secretary certify that he would ‘ensure’ that a freed ‘individual cannot engage or re-engage in any terrorist activity.’” As Jeh Johnson, the Pentagon’s general counsel, explained in a speech last month at the Heritage Foundation, “This provision is onerous and near impossible to satisfy.”

Outside of these 31 individuals, the 58 Yemenis are also subjected to the problems highlighted by Jeh Johnson, and are saddled with other problems too. Although 28 of them could have been sent home with seven of their compatriots the week before Christmas in 2009, a failed attempt by a Nigerian man to blow up a plane bound for Detroit on Christmas Day with a bomb in his underwear derailed plans for their release, apparently indefinitely.

In respond to an uproar following a revelation that the man in question, Umar Farouk Abdulmutallab, had been recruited in Yemen, President Obama bowed to pressure and issued a moratorium on releasing any more Yemenis from Guantánamo. This shows no sign of being dropped, even though some of the men “approved for transfer” by Obama’s Task Force were first approved for release from Guantánamo by a military review board under the Bush administration in 2004, and even though blanket bans of this sort are nothing less than “guilt by nationality.”

For the remaining 30 Yemenis, a further obstacle to their release is that, although they too were “approved for transfer,” the Task Force created a special category for them, declaring that they should be held in “conditional detention” at Guantánamo until the security situation in Yemen improved.

With such obstacles, it is uncertain when any of these 89 prisoners will be released, but in the meantime, as American justice groans under the burden of layers of dubious impositions designed to prevent the release of any of these men — whether innocent, cleared by a court, or cleared by Bush’s military review boards seven years ago — America’s coffers are also suffering. This is not just because of the $72 million that it cost to hold these men last year, but also because of the hundreds of millions of dollars that it has cost to hold them for nearly ten years, or the billions of dollars that — in total — have been spent on holding them and hundreds of other prisoners already released.

On the other hand, if you prefer to look to the future rather than the past, as President Obama does, then you may wish to reflect on the billions of dollars that will be spent on holding these men in future — as the years turn into decades, and they begin to die of old age — until someone in authority finds a way to bring this dark and disgraceful farce to an end.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

Despite all this, to many Republicans in Congress — and even members of his own party — Obama is still not tough enough on national security issues. Time and again, lawmakers have acted to tie his hands, inserting provisions into a defense bill last December and an omnibus spending bill in April that prevented the administration from moving any prisoner from Guantánamo to the US mainland for any reason, even to face a trial, that prevented the purchase, construction or modification of any prison on the US mainland to hold Guantánamo prisoners, and that also required the defense secretary to notify Congress before releasing a single prisoner from Guantánamo.

Not content with this, lawmakers are pushing for further restrictions on the President’s authority and the administration’s policies, and are pushing so far that, finally, senior officials have responded. The problems for the administration, as the Associated Press explained two weeks ago, are with two provisions in a defense bill passed by the House of Representatives in May, and another provision in a bill that emerged from the Senate Armed Services Committee in June.

Partly revisiting contentious but familiar territory, the House bill again prohibits the transfer of prisoners from Guantánamo to the US mainland, thereby preventing the administration from subjecting any of the prisoners to federal court trials. The result is that they can only be prosecuted at Guantánamo in trials by military commission, even though the administration believes that this unnecessarily restricts its options, given that it accepts the viability of both federal court trials and military commissions — although it should be noted, of course, that the administration must bear the blame for reintroducing the commissions in the first place.

The House bill also intrudes further than before on the President’s right to release prisoners from Guantánamo, preventing the release of any prisoner unless the defense secretary provides certifications to Congress, guaranteeing that no prisoners previously released to the intended country have taken up arms against the US, and also providing details about the country’s record when it comes to combating terrorism and the state of its prisons.

In addition, the provision in the bill produced by the Senate Armed Services Committee is the most obviously alarming, as it requires the government to hold all terror suspects in military custody who are either identified as a member of al-Qaeda or an alleged affiliate group, or who have planned or carried out an attack on the United States.

In arguing against the latter provision, the administration can point to success in the federal court trial of Umar Farouk Abdulmutallab, the Nigerian would-be plane bomber, who delivered a guilty plea in his federal court trial on October 12, and who was interrogated by the FBI and not held in military custody. In addition, of course, the military commission trials at Guantánamo are ongoing, with the arraignment of Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 bombing of the USS Cole, scheduled for November 9.

As a result, it was unsurprising that, on September 16, John Brennan, President Obama’s chief counterterrorism advisor, told a Harvard University audience that the safest and most constructive approach was “a case-by-case approach in prosecuting terrorist suspects.” Brennan said, “We have established a practical, flexible, results-driven approach that maximizes our intelligence collection and preserves our ability to prosecute dangerous individuals. Anything less — particularly a rigid, inflexible approach — would be disastrous.”

Picking up where John Brennan left off, Jeh Johnson, the Pentagon’s General Counsel, told an audience at the right-wing Heritage Foundation on Tuesday that, when it came to the proposals to hold terror suspects in military custody, although we “must use every tool at our disposal,” there was “a danger in over-militarizing our approach to al-Qaeda and its affiliates.”

In case there was any doubt about his meaning, he stated, explicitly, that there were no conditions “under which the Obama White House might use Guantánamo for future detention or prosecution of terror suspects beyond those were currently there — four already convicted of war crimes and six in the chute for death-penalty prosecutions,” as the Miami Herald described it. “It is the firm policy of this administration not to add to the Guantánamo population,” Johnson said. “The president pledged to close Guantánamo and we are committed to that goal.”

Jeh Johnson also chastised Congress for its impositions on the President’s ability to close Guantánamo. He told the audience that dozens of the 171 prisoners still held at Guantánamo — actually, 30 in total — were cleared for release by the President’s Guantánamo Review Task Force, and could be freed if the State Department could “secure safe resettlement agreements” and defense secretary Leon Panetta “signs a waiver” acceptable to Congress, as the Miami Herald put it. In Johnson’s words, however, that waiver is “onerous and near impossible to satisfy,” and, he added, “Not one Guantánamo detainee has been certified for transfer since this legal restriction has been imposed.”

Johnson did not mention that another 28 Yemenis were cleared for release by the Task Force — and another 30 were also approved for release if it was judged that the security situation improved — because it was President Obama himself who issued a moratorium on releasing any Yemenis in January 2010, after an uproar following the capture of Umar Farouk Abdulmutallab, and the revelation that he had been recruited in Yemen.

Even so, preventing Congressional obstruction is essential if any of the cleared prisoners are to be released from Guantánamo. Since Congress first stepped up its opposition to any releases under any circumstances, at the end of last year, only three prisoners have left Guantánamo — an Algerian who won his habeas corpus petition, and two others who left in coffins.

Holding so many men cleared for release as the 10th anniversary of Guantanamo approaches (in January 2012) is profoundly unfair, and resuming the release of prisoners is essential if the Obama administration is ever to fulfill the President’s pledge to close the prison. Just as essential, however, is preventing lawmakers from dictating how the administration should deal with terror suspects. Mandatory military custody is, to be blunt, a deranged idea, as eleven retired generals, admirals and former judge advocate generals have explained. Announcing their opposition to the proposed legislation, they stated that it “would transform our armed forces into judge, jury and jailor for foreign terrorist suspects,” adding, “The military’s mission is to prosecute wars, not terrorists.”

Ten years on from the 9/11 attacks, and five months after the death of Osama bin Laden, it ought to be incomprehensible that these kinds of proposals are not only being proposed, but are being championed by lawmakers. There is, in this, a degree of cynicism on the part of some lawmakers, but for others the motivation is fear — the same fear that was so successfully manipulated by the Bush administration, and that still needs to be challenged and defeated by those who realize that, in the end, rather than protecting us, fear eats away at our sense of justice, morality and freedom.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

A fourth reason, less generally noticed, is that the Afghan war led to the creation of Guantánamo, a prison touted by the Bush administration as a facility for holding “the worst of the worst,” but in reality a brutal and failed experiment, which never held more than a small number of genuine terror suspects, but, which, nonetheless, has proved resistant to calls for its closure.

Around three-quarters of the 779 prisoners held at Guantánamo were seized as a result of the invasion and occupation of Afghanistan, either in Afghanistan itself, or after crossing from Afghanistan into Pakistan after the US-led invasion, where the authorities (up to and including President Pervez Musharraf) were particularly interested in the bounty payments offered by the US military for al-Qaeda and Taliban suspects. As President Musharraf admitted in his 2006 autobiography, In the Line of Fire, in return for handing over 369 terror suspects to the US, “We have earned bounty payments totaling millions of dollars.”

Because of the Bush administration’s arrogance and incompetence, which also involved a refusal to screen the prisoners to ascertain whether they were actually combatants or not, many completely innocent people ended up at Guantánamo, as did hundreds of Taliban foot soldiers — whether volunteers or conscripts — who were dressed up as part of a “terrorist threat,” deprived of their rights and subjected to abusive, arbitrary detention, even though they should have been held as prisoners of war, protected from torture and abuse by the Geneva Conventions.

171 prisoners are still held, and only a few dozen of them are actually accused of any involvement in terrorism. The breakdown of those held is as follows:

• 30 of the prisoners are still held because they are cleared for release (“approved for transfer” in Guantánamo-speak) but cannot return safely to their home countries and no other country — including the US — has been found that will take them.
• 58 of the prisoners are still held because they are Yemenis, whose transfer was approved by a Presidential Task Force, but then blocked because of fears about the security situation in Yemen.
• 46 others are held because they are regarded as a threat but the evidence against them is too compromised to be used in a trial (in other words, the alleged evidence is unreliable, and tainted by torture or abuse).
• 36 others were recommended for trial by the President’s Guantánamo Review Task Force, and three of these have been tried, and reached plea deals (one other prisoner was tried and sentenced under George W. Bush).

Ten years on from the start of the Afghan war, those held in Guantánamo have been largely forgotten, as President Obama ran up against stiff opposition in Congress over his promise to close the prison by January 2010, and then failed to stand up for himself, allowing cynical lawmakers to step in. In the last year, lawmakers have included outrageous provisions in various pieces of legislation preventing the use of funds to purchase a replacement prison on the US mainland, preventing any prisoner from being brought to the US mainland for any reason, and preventing the President from releasing anyone without Congressional scrutiny.

An end to the Afghan occupation would not bring about the immediate closure of Guantánamo. Nor would it provide a new home for its 30 refugees (in the US, if no other country can be found), or lead to the release of the Yemenis, or to the release of those held despite the lack of evidence against them. That, it seems, will only happen when there is sufficient political will, both at home and abroad, to put pressure on the President to fight back against his critics and to do what he promised on his second day on office — to close Guantánamo and bring this sordid chapter of modern American history to an end.

*****

In spite of these considerable obstacles to justice, which still present a major challenge to the American people, the end of the Afghan war would, if nothing else, erode the basis on which the 171 men still at Guantánamo are held — the Authorization for Use of Military Force. The founding document of the “war on terror,” passed by Congress the week after the 9/11 attacks, the AUMF authorized, and still authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” or those who harbored them.

The bedrock of the occupation of Afghanistan, of warrantless wiretapping, and of the alleged right to assassinate US citizens abroad, without any kind of due process, the AUMF has also specifically been used to justify detention in the “war on terror” since June 2004, when the Supreme Court ruled, in Hamdi v. Rumsfeld, that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF.

I have written about the AUMF extensively — most recently a month ago, in my article, “After Ten Years of the ‘War on Terror,’ It’s Time to Scrap the Authorization for Use of Military Force” — in which I noted that Rep. Barbara Lee, who was the only member of Congress to oppose the AUMF in September 2001, is opposing it again, trying to persuade her fellow lawmakers to scrap it.

That may be a lost cause, but as the 10th anniversary of the start of the Afghan war passes, and the endless cycle of news rolls on, relentlessly seeking to give us all attention deficit disorder, those of us who want to see the closure of Guantánamo — and also want the war to end — need to keep pushing for this dangerously open-ended piece of legislation to be repealed.

As a final reminder of the importance of this particular cause, remember that when we think of Guantánamo, and when we think of all the permutations of America’s current wars — the “war on terror,” the “long war,” the war in Afghanistan, detentions at Bagram and elsewhere, the undeclared wars in other countries, and the drone attacks in Pakistan, Yemen and elsewhere — they all rely for their existence on the Authorization for Use of Military Force.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

An edited version of this article was published exclusively on the website of the Future of Freedom Foundation.

This open-ended document is the bedrock of the occupation of Afghanistan, which began on October 6, 2001, and of the detention of prisoners in Guantánamo, as the Supreme Court confirmed in June 2004, in Hamdi v. Rumsfeld, ruling explicitly that it authorizes the detention of those held as a result of the President’s activities.

It has also been “cited as an authority for him to engage in electronic surveillance against possible terrorists without obtaining authorization of the special Court created by the Foreign Intelligence Surveillance Act (FISA) of 1978,” as the Congressional Research Service (CRS) noted in a report on the AUMF in 2007.

This fascinating report (PDF) also reveals that the AUMF could have been far worse, in the sense of allowing the President powers to behave as he saw fit, without the possibility that Congress could constrain him. On September 12, 2001, the White House gave a draft joint resolution to the leaders of the Senate and the House, and, as the report states, “This White House draft legislation, if it had been enacted, would have authorized the President (1) to take military action against those involved in some notable way with the September 11 attacks on the US, but it also would have granted him (2) statutory authority ‘to deter and pre-empt any future acts of terrorism or aggression against the United States.’”

Noting the gravity of the Bush administration’s intentions, the CRS explained:

This language would have seemingly authorized the President, without durational limitation, and at his sole discretion, to take military action against any nation, terrorist group or individuals in the world without having to seek further authority from the Congress. It would have granted the President open-ended authority to act against all terrorism and terrorists or potential aggressors against the United States anywhere, not just the authority to act against the terrorists involved in the September 11, 2001 attacks, and those nations, organizations and persons who had aided or harbored the terrorists.

As a result, the section which would have allowed the President “to deter and pre-empt any future acts of terrorism or aggression against the United States” was “strongly opposed by key legislators in Congress and was not included in the final version of the legislation that was passed.”

This was significant, and the scale of the President’s ambitions were glimpsed when, after the death of Osama bin Laden in May, some Republican lawmakers, led by Rep. Buck McKeon (R – Calif.), wanted to revive the AUMF with a much broader scope (in line with the Bush administration’s original plans), rather than accepting that, with the death of al-Qaeda’s leader, the AUMF was no longer needed. The difference was that Rep. McKeon envisaged Congress in the driving seat, but it was still alarming that he was calling for what Spencer Ackerman of Wired described as “a big expansion of executive authority.”

I discussed the outrageous position taken by these lawmakers in an article at the time, entitled, “No End to the ‘War on Terror,’ No End to Guantánamo,” in which I also discussed the need for the AUMF to be scrapped as a justification for holding prisoners at Guantánamo neither as prisoners of war nor as criminal suspects.

This has been a long and lonely campaign on my part, as it is outrageous that, ten years after the 9/11 attacks, the legacy of the Bush administration’s reckless decision to declare a war instead of a crime on September 11, 2001, and to insist that it was appropriate to hold soldiers and terror suspects as “illegal enemy combatants” without rights, still exists at Guantánamo.

When President Obama found it difficult to close the prison, he was, at least, reassured that there was nothing illegal about continuing to hold prisoners at Guantánamo, because of the AUMF, and so, ten years after 9/11, it continues to be regarded as acceptable that the soldiers held in Guantánamo are not allowed to ask when the “war” in which they were seized will come to an end, and that the actual terror suspects — a few dozen men, including those accused of masterminding and being involved in the 9/11 attacks — are supposed to be subjected to trials by military commission, while every terror suspect not held at Guantánamo is tried in federal court.

In the Nation this week, John Nichols was the only mainstream journalist to take an interest in the 10th anniversary of the AUMF. He wrote that, on the eve of the 9/11 attacks, he was at a conference in Brussels, “Journalism in the Shadow of Terror Laws,” with Mary Robinson, the former Irish president and UN High Commissioner for Human Rights, whose words struck a chord with Nichols.

“I remember,” she said, “the loneliness of speaking out against the declaration of a ‘war on terrorism.’” She added, as Nichols described it, that:

The language we use to characterize events defines our response to them and when crimes against humanity were defined as acts of war, then an appropriate demand that those responsible for horrific violence be brought to justice was replaced with the overwrought and overarching demands of “a perpetual war of terror.”

Homing in on the Congressional approval of the AUMF on September 14, 2001, Nichols noted that this “perpetual war” has not only had a massive human cost, but has also been a political disaster, losing “both good will and authority over the past decade,” and has also involved a staggering financial cost — more than $7.6 trillion in defense and homeland security spending, according to “new accounting by the National Priorities Project.”

Nichols understands that America’s military-industrial complex would have found ways to try and bankrupt America without the “War on Terror,” although he is correct to explain that this “permanent war” has redefined America just as James Madison worried when he wrote in 1795, “Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other,” and when, in particular, he wrote, “No nation could reserve its freedom in the midst of continual warfare.”

In the US, Congresswoman Barbara Lee was the only lawmaker to speak out against he AUMF back in September 2001, when she warned, “[We] must be careful not to embark on an open-ended war with neither an exit strategy nor a focused target. We cannot repeat past mistakes.”

Barbara Lee was threatened and ridiculed for being the sole lawmaker to vote against the AUMF, but she has now submitted legislation calling for the AUMF to be repealed. “In reflecting on the rush-to-war in Afghanistan and President Bush’s misguided war-of-choice in Iraq,” she said, “my worst fears have unfortunately been realized.” She added:

Over the past [decade], this broad authorization of force has had far-reaching implications which shake the very foundations of our great nation and democracy. It has been used to justify warrantless surveillance and wiretapping activities, indefinite detention practices that fly in the face of our constitutional values, extrajudicial targeted-killing operations, and a policy of borderless and open-ended war that threatens to indefinitely extend US military engagement around the world.

Lee concluded, “It is time for Congress to reexamine, and ultimately repeal this flawed authorization. The alternative, to concede Congress’s constitutional responsibilities and blindly accept the persistence of war without end, is unacceptable.”

It remains to be seen whether the mainstream media will pick up on Barbara Lee’s proposal, or whether they will continue to allow themselves to be distracted by the self-serving lies of former Vice President Dick Cheney. This time around, as John Nichols explained, she has the support of 14 co-sponsors for her bill — 13 Democrats and one Republican.

This is an improvement, but much more interest is needed, if this dreadful legislation — the justification for “perpetual war,” indefinite detentions at Guantánamo, and the warrantless wiretapping of US citizens — is to be repealed, bringing the brutal and lamentable “War on Terror” to an end.

Note: Also see David Swanson’s article here.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, 700,000-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

I should note that my interest in the article is not entirely objective, as I was involved in it as a consultant, and I have also added links that were not included in the original article.

The 9/11 Decade and the Decline of US Democracy
By Vince Warren, Executive Director, Center for Constitutional Rights

In response to the terrorist attacks on September 11, 2001, George W. Bush shredded the US Constitution, trampled on the Bill of Rights, discarded the Geneva Conventions, and heaped scorn on the domestic torture statute and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

As we mark the 10th anniversary of the terrible events of September 11, 2001, none of us has any desire to play down the horrors of that day, but two wrongs do not make a right, and, in response to the attacks, the Bush administration engineered and presided over the most sustained period of constitutional decay in our history.

Moreover, although George W. Bush entered the first decade of the 21st century by dismantling the rights that are fundamental to the identity of the United States and the security of its people, Barack Obama ended the decade by failing to fully reinstate those rights. Through his own indecision, or through ferocious opposition in Congress, he has been unable to close the infamous prison at Guantánamo Bay, as promised, and has also refused to even contemplate holding anyone in the Bush administration accountable for their crimes.

As a result, the democratic principles which we hold dear have suffered a massive blow in the first ten years of the 21st century, although that is not the main problem. The deep erosion of our civil liberties is to be lamented, and should be resisted, however difficult the political climate, but the most painful truth about the last decade is that it marks an undoing of democracy so severe that without concerted and deliberate action by the people in this country — and, one hopes, by their elected leaders — the values which defined us, before the events of 9/11 allowed the Bush administration to reshape our perception of executive power, may never be regained.

This decade of constitutional decay didn’t happen overnight, although much of it was hidden from view. We were kept largely in the dark about how the government took steps to dismantle our rights, which were undertaken in a fog of secrecy, subterfuge and, in some cases, outright lies.

A well functioning democracy in this country relies on the three branches of government — the executive, Congress and the judiciary — checking each other to prevent overreach or constitutional misdeeds.

In this system, which has prevailed throughout most of our history, the executive is responsible for executing (and therefore abiding by) the laws of the republic. Congress creates laws, which, in some circumstances, circumscribe the power of the executive branch, and when Congress doesn’t approve of what the president is doing, it can change the laws, conduct inquires and hearings, and in certain circumstances, investigate potential wrong doing. The judiciary reviews the laws and presidential actions to ensure that they comport with the Constitution and justice.

In this system, no one is above the law. Illegal action initiated by the president can be stopped by the courts and congress; unjust laws initiated by Congress can be stopped by the president and the courts; and the Constitution prohibits the courts from making new law or policies or otherwise undertaking the powers of “the political branches” — Congress and the executive. Thus, regardless of the threat, the checks and balances we’ve built into our democracy are supposed to uphold the power of the fourth branch of government — that made up of the people who live in this country.

However, as we now know, a decade into the 21st century, the system upon which we all stake our liberty and democratic power as people has operated more like a scientific hypothesis than a bedrock of democratic principles. And just like any hypothesis, its true test is determined by the way it functions under pressure, and not how it works in theory. One need look no further than the last ten years to understand that the constitutional hypothesis has failed under the last two administrations. Our constitutional and democratic principles collapsed as breathtakingly as those same principles rose in the context of North Africa earlier this year.

The overarching development over the last ten years is that we have witnessed perhaps the single most demonstrable destruction of our democracy in US history. The rights that used to belong solely to US as people living in this country have been severely curtailed. We have fewer rights — and the president more power — in September 2011 than in September 2001. And any diminution of our rights, regardless of the justification of the day, is an elimination of our ability to define the country that we want to live in and shape it around the values that are crucial to our survival as a society run by and accountable to the people.

The undoing of Democracy — The “War” Paradigm

Ask a high school freshman in the US who the most powerful person in the world is and she will most likely say the president of the United States. That is not a change since 9/11, certainly. However, ask that same student who is more powerful in the US government, the president, Congress or the Supreme Court, and she’ll still say it’s the president. That reflects a significant change in the American psyche over the last decade with respect to the balance of powers in our government as outlined by the United States Constitution, which will turn 224 on September 17, 2011.

Most people now recognize that President Bush claimed more power than any previous president. He claimed the power to kill, capture or detain anyone, anywhere in the world. The Justice Department, under George W. Bush, said that the law simply doesn’t apply to the president when he’s acting as commander in chief. So the lawyers gathered around him, and around Vice President Dick Cheney, counseled him that he could ignore the fact that Congress had passed a law saying that torture was illegal or that the government can’t wiretap without a warrant.

Going further, the Bush administration claimed the power to send citizens to third countries to be tortured, to create secret “black sites” run by the CIA to detain and torture people, and of course, to detain men at Guantánamo Bay. Bush also claimed the authority to declare unilaterally that people it captured and placed in these prisons were neither subject to the Geneva Conventions nor the protections of the US Constitution.

The Bush Administration created the “war on terror” paradigm not to protect US from future attack, although that was what they claimed, but rather to put in place a radical expansion of power that sought to place the president outside domestic and international law. According to a leaked Justice Department memo from December 2001, Guantánamo Bay was specifically chosen for the purpose of detaining the prisoners of the US military because the Bush administration believed it would be beyond the reach of US courts. Existing outside the law and in complete secrecy, it was an ideal place to conduct interrogations of a significant number of prisoners in isolation from all outside human contact. Its selection demonstrates that, from the very beginning, the Bush administration planned to engage in activities that are illegal under domestic law and in violation of international treaties. And that is precisely what they did.

The US government and the highest levels of the Bush administration constructed a secret international network for arbitrary and extrajudicial detention for the purpose of using torture as an interrogation method, and engaged in a program of extraordinary rendition that outsourced torture when the US didn’t want to do it itself. The Bush administration set into place a framework that attempted to justify an unjustifiable act: torture. A high level Executive Branch group called the “Principals Committee,” which included Vice President Dick Cheney, Attorney General John Ashcroft, Secretary of State Colin Powell, CIA Director George Tenet and national security advisor Condoleezza Rice, authorized the use of torture, including waterboarding. Secretary of Defense Donald Rumsfeld also signed off on similar techniques for use in Guantánamo in December 2002, which later migrated to Iraq, and to Abu Ghraib. Moreover, administration lawyers, such as David Addington, John Yoo, Alberto Gonzales and Jim Haynes, constructed fallacious legal rationales to support and justify the torture and abuse program.

Despite the rampant and brazen illegality put into place in the last 10 years, the courts have rarely called the administration to account for the crimes. The separation of powers concept used to function to circumscribe governmental power. In the last ten years, however, it has functioned to enable the amassing of presidential power. The courts have largely deferred to the president by uncritically accepting the wartime paradigm and giving him free rein to do as he sees fit — even though what he seeks to do is illegal. As a result, no torture victim has ever received a court ruling that the torture they suffered was illegal and most have been denied their day in court. Not one has received a dime in compensation for their injuries or even so much as an apology from either administration. To date, 171 men remain in Guantánamo and, after a decade of the “worst of the worst” rhetoric, more detainees have died in that prison than have been charged with a crime.

On three occasions, in 2004, 2006 and 2008, the Supreme Court issued serious, but not mortal, blows to the overreach and illegality of the Bush administration. The rulings in 2004 and 2008 granted the Guantánamo prisoners habeas corpus rights; in other words, the right not to be held in a legal black hole, and to ask an impartial judge why they were being held, if, as many of them claimed, they had been seized by mistake. The 2006 ruling, Hamdan v. Rumsfeld, involved the Court not only ruling that the trials at Guantánamo (the military commissions) were illegal, but also telling the government that all its prisoners have the protection of Common Article 3 of the Geneva Conventions, which prohibits cruel treatment, torture, and humiliating and degrading treatment.

Sadly, Congress has also played a major part in allowing the president to do whatever he says is necessary, even if it is illegal. Congress passed the dangerously open-ended Authorization for Use of Military Force (AUMF) the week after the 9/11 attacks, which has been used by both Bush and Obama to justify the detention of “war on terror” prisoners, and to hold them neither as prisoners of war nor as criminal suspects, but as what the Bush administration called “enemy combatants.” Moreover, Congress pulled the rug out from under the landmark Supreme Court decisions, seeking to repeal the prisoners’ habeas corpus rights, and reviving the military commissions.

Under Obama, all three branches of government — the executive, Congress and the courts — have largely refused to tackle Bush’s dreadful legacy. Obama has dedicated himself to looking forward and not back when it comes to the accountability of Bush administration officials and lawyers for authorizing the use of torture, and courts throughout the land have endorsed his position, and he has also revived the military commissions, in the face of opposition to federal court trials for terrorists, despite the latter being the appropriate venue for terrorist trials. He has also endorsed indefinite detention for 46 of the 171 men still held at Guantánamo, and has, in some cases, expanded Bush’s programs, declaring, for example, that he has the right to assassinate U.S. citizens abroad, without any form of legal process.

In addition, the Supreme Court has failed to act as the court of appeals in Washington D.C. has undermined the Guantánamo prisoners’ habeas corpus rights, effectively gutting habeas of all meaning, and Congress has launched an all-out assault on the president’s ability to close Guantánamo, preventing him from bringing prisoners to the U.S. mainland, and interfering in his right to release prisoners as he sees fit.

Beyond pure policy and legal considerations, the results have been devastating for the victims and survivors of these practices and policies. The men in Guantánamo, and the “black sites” have endured a decade of arbitrary detention without charge or trial, and suffered torture, abuse and cruel, degrading treatment as alleged “enemy combatants.” The “black sites” may now be part of the past, along with Abu Ghraib, but the US under Obama maintains prisons in Afghanistan, including Bagram, where there have been allegations of the use of secret prisons, and where, in addition, the Geneva Conventions have not been reinstated.

Moreover, those that have been released continue to face mental anguish, suspicion and stigma, as well as the loss, in some cases, of family ties. These social costs will continue to extend far beyond the immediate victims. They affect entire families, communities, societies and even nations that have been subjected to forced engagement with the effects of the “war on terror” paradigm.

Illegal Surveillance … Again

The government used to need a warrant before spying on us, but those days are long gone. Thirty years ago, President Nixon’s warrantless wiretapping scandalized the nation. And although that administration used “national security” as a justification for the illegal acts, Congress and the Supreme Court insisted that the law had to govern all intelligence and counterintelligence gathering by the government, even when it was undertaken to protect against terrorism.

The Bush Administration discarded the US Constitution, again using the war and national security paradigms as justification. Bush and his advisors simply ignored the rules and wiretapped Americans and others without warrants or judicial oversight. Restoring the constitutional protections against government spying, uncovering the full extent of illegal surveillance programs, ending immunity for telecommunications companies and prosecuting those responsible for violating the law are essential to reclaiming our democratic power — our rights to be free from unreasonable searches and seizures, and our expectation that the constitutional system will function to protect those rights, are essential elements of restoring democracy.

The Foreign Intelligence Surveillance Act (FISA) had been the fundamental tool to regulate government surveillance. It properly involved Congress and the courts in issues deemed to be of concern to national security and established accountability frameworks for surveillance programs. That all changed radically after September 11, 2001. Congress joined forces to pass new laws, justified on “national security” grounds, that granted more power to surveillance and intelligence agencies. The Bush administration, however, not only pushed for these laws, but made up its own secret plan, through an executive order to the NSA, for reviving the kinds of programs explicitly deemed unconstitutional by the Supreme Court (in a 1972 Center for Constitutional Rights case) and prohibited by FISA. These Bush programs existed outside of the law and included wiretapping US and foreign individuals without a warrant from any court and subject to no judicial oversight. The details were largely kept secret from Congress and the public until exposed, years later, by whistleblowers and the press.

In 2001, when the Authorization for the Use of Military Force and the PATRIOT Act were passed, the Bush administration never asked Congress for expanded surveillance authority including the right to spy on attorney-client communications, or to amend FISA to accommodate wiretapping unchecked by the FISA Court. As Attorney General Alberto Gonzales would admit years later, the administration did not try to amend FISA to authorize the NSA spying program because “it was not something we could likely get.”

In November 2001, following the Bush administration’s call for an all-out “war on terror,” the USA PATRIOT Act was passed by wide margins in both houses of Congress. The PATRIOT Act included unprecedented expansions of government surveillance powers, including spying and government involvement in political and associational activity. It made extensive changes to FISA, eliminating many of the safeguards against surveillance abuse, and ramped up existing legislation such as the 1996 Anti-terrorism and Effective Death Penalty Act, which created new “material support” laws that defined political activity as criminal.

Although the current program of warrantless wiretapping and surveillance of Americans’ telephone calls that blatantly violated FISA began in the Bush Administration, the Obama administration has not renounced the power that Bush claimed. Moreover, the Obama administration has fought relentlessly in court to preserve these abuses of power.

Repression of Dissent

“Terrorism” is a word that has been used by the executive branch repeatedly since 9/11 to provide rationale for going to war, maintaining those wars, and cracking down on protest and dissent domestically in violation of the Constitution and international law. In doing so, Bush and Obama have ushered in a new era of repression, enabling law enforcement agencies to abuse their powers by targeting, detaining and silencing political activists. While this type of repression is far from a new exercise for the government, given the capitulation of Congress and the courts to the president, the people of this country will once again find themselves nose to nose with government crackdown on their protest of unjust government action.

A key question for us to ask is what effect will US war-making foreign policy continue to have on our protest of that policy? Unless and until the United States stops its current policy of declaring war on anyone in the world in the name of combating terrorism, people will continue to organize themselves to oppose it. And as long as people oppose “war on terrorism” policies, the government will use its power to label the dissenters themselves as terrorists.

While the stakes for defending dissent couldn’t be higher today, the obstacles are more difficult and more complicated than they were even ten years ago. Much of the organizing these days occurs online and by mobile phone and computer. This makes organizing more effective for the activists, but it also makes it easier for law enforcement to spy on and disrupt the activists’ plans. For example, law enforcement has established “Joint Terrorism Task Forces,” which bring together federal, state and local law enforcement and other agencies into “fusion centers.” State governments are even contracting out their illegal surveillance to private companies, as was done recently in Pennsylvania, when state homeland security director, James Powers, hired a private company to research and distribute information about groups engaged in lawful activity.

The nature of whistleblowing has changed in the last decade as well. In the current digital age, evidence of government wrongdoing is likely to come in the form of data dumps which can be distributed widely and quickly as in the case of WikiLeaks. And when the government pushes corporations to shut down public access to that information, the counter activism can take the form of hacking, as with Anonymous. In addition, an enormous change has occurred in how whistleblowers are treated. Despite a move prior to 2001 to protect whistleblowers, the Obama administration has taken on the mantle of prosecuting them — as terrorists.

In the last decade, the truth has become either a state secret or treason. With respect to WikiLeaks and its founder, Julian Assange, Sarah Palin calls Assange an “anti-American operative with blood on his hands” and wants him hunted down like an Al-Qaeda chief, Rick Santorum and Peter King want him prosecuted as a “terrorist,” and Joe Lieberman suggests that the five news outlets that published the leaked State Department cables should be investigated for espionage. Exposing the facts — especially those concerning illegal government conduct and abuse — has become a serious crime.

Moreover, activists today run the very real risk of being arrested and prosecuted for their First Amendment activity. A ruling in a recent CCR case, Holder v. Humanitarian Law Project (HLP), highlights why dissent must be defended at all costs, even while the Supreme Court turns the First Amendment and “material support for terrorism” on its head. CCR argued HLP in the Supreme Court and challenged the “material support” statues, including a portion of the USA PATRIOT Act, which makes it a crime to provide support, including humanitarian aid, literature distribution and peaceful political advocacy, to any entity that the government has designated as a “terrorist” group. The Court ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. As a result, the Court has criminalized speech and polished the hammer with which the Obama government can now prosecute peace activists and human rights organizations who engage with groups on the government’s terrorist list even to support lawful goals.

Endless War

Finally, it is unacceptable that George Bush marched us into Iraq and Afghanistan illegally and under false pretenses, while Barack Obama has almost tripled the number of wars we are fighting. Hundreds of thousands of civilians have been killed in Afghanistan, Iraq and Pakistan alone, and millions have been displaced. Over 6,000 US military service members have been killed, and more than 50,000 wounded in wars that have cost the American people trillions of dollars.

It’s not just where these wars are happening, but it’s also how. We are conducting drone strikes in Pakistan, Libya, and Yemen, countries on which Congress has not declared war. To the extent that Bush and his advisors ignored the law to justify torture, Obama and his advisors ignore the law to justify warfare. Currently, his advisors are going so far as argue that the President can bypass the War Powers Resolution’s restrictions on unilateral, executive warmaking simply by using high-tech weaponry like drones, which don’t require the presence of troops on the ground.

Conclusion — bringing power back to the people

Ten years on from the terrorist attacks of September 11, 2001, at the end of the distressing decade defined by those attacks, we find ourselves in a position where the president has claimed more power than ever and the people have conceded more power than ever. Ten years ago, federal trials were the norm for alleged criminal terroristic activity; now, the default method is military show trials that include the death penalty or indefinite or preventive detention. Ten years on from 9/11, more illegal wars are being fought today than under Bush, more laws are subverted in the name of national security, more people are being deported than at any point in our history, and the executive branch has seized or accrued more power than it has ever had.

In the end, the test of our democracy is to look at the actions that have been done in our name and under our watch — the wars, the repression, the extra-judicial detention and killings, the torture, the profiling — and ask ourselves: are we in a better position now to stop the acts that continue, to ensure that they don’t happen in the future, to ensure that the officials are held accountable, and to put the presidency back in the constitutional box than we were 10 years ago?

The answer to that is yes, to the extent that we are able to demand that our government end the lawlessness, stop stockpiling constitutional power and move back towards a path of lawful, democratic action, but the restoration of the values that we hold dear requires concerted action by many people.

The 10th anniversary of the 9/11 attacks is a painful anniversary, but let us also make it the occasion when, en masse, we say to the government, “Enough is enough,” and demand an end to the ongoing injustices, and the return of our values.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, 700,000-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.