Brett Kavanaugh, Trump’s Supreme Court Nomination, Has a Dangerous Track Record of Defending Guantánamo and Unfettered Executive Power

Judge Brett Kavanaugh, Donald Trump and a close-up of Guantanamo prisoners photographed on the day the prison opened, January 11, 2002. The photo on the left is an edit of a photo by Mandel Ngan/AFP/Getty Images.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Disgraceful though Donald Trump’s presidency is, it will at least be over at some point in the imaginable future, with the potential that his most outrageous policy changes, enacted in legislation by a Republican majority in Congress, can be reversed should Congress end up with a Democratic majority instead.

When it comes to interpreting the law, however, his impact will last for decades, through his nominations to the nation’s District Courts, appeals courts (the Circuit Courts), and, most crucially, the Supreme Court.

Shamefully, although Barack Obama successfully nominated two of the Supreme Court’s nine justices during his eight years in office (Sonia Sotomayor and Elena Kagan), Congress — where Republicans had a majority, as they did throughout most of Obama’s presidency — refused to consider his third nomination, Merrick Garland, nominated in March 2016. Garland’s appointment would have given Democratic appointees a majority on the Supreme Court for the first time since 1970, but Garland’s nomination expired in January 2017, when Obama left office, and when Donald Trump took over he wasted no time in nominating Neil Gorsuch instead, a dangerous right-winger whose nomination was subsequently approved by the Republican-controlled Congress. Read the rest of this entry »

Who Are the Ten Guantánamo Prisoners Released in Oman, Leaving 45 Men Still Held, Including Nine Approved for Release?

The ten prisoners released from Guantanamo on Jan. 16, 2017. Top, from L to R: Abdul Zahir (Afghanistan) and the Yemenis Mohammed al-Ansi, Mohammed Ahmed Said Haidel (aka Muhammed Ahmad Said Haydar), Salman Yahya Hassan Mohammed Rabei’i and Musa’ab al-Madhwani (aka Musab Omar Ali al Madhwani). Bottom, from L to R: Bostan Karim (aka Karim Bostan) (Afghanistan) and the Yemenis Ghaleb al-Bihani, Mustafa al-Shamiri, Walid Said Bin Said Zaid and Hail al-Maythali (aka Hayil al-Maythali). All the photos are from the files leaked by Chelsea Manning and released by WikiLeaks in 2011 except the photo of al-Bihani, which was taken by the International Red Cross, and made available by his lawyers at the Center for Constitutional Rights.Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo during the first two months of the incoming Trump administration.

 

So there was great news from Guantánamo on Monday, when ten men — eight Yemenis and two Afghans — were released and sent to Oman, which has previously taken in 20 Yemenis. The Yemenis have been the most difficult category of prisoners to be freed from Guantánamo, because the entire US establishment is unwilling to repatriate them, fearing the security situation in their home country, meaning that third countries must be found that are prepared to offer them a new home — and are prepared to overlook the fact that the US itself is unwilling to do that, and, in fact, that Congress has, for many years, passed laws specifically preventing any Guantánamo prisoner from being brought to the US mainland for any reason.

The ten releases leave 45 men still held at Guantánamo, with three or four more releases expected before President Obama leaves office on Friday, according to the latest reports. At present, however, nine men approved for release are still held, and the release of those left behind when Obama leaves the White House must be a priority for campaigners as soon as Donald Trump takes office.

Of the ten men released, two were approved for release in 2009 by the high-level, inter-agency Guantánamo Review Task Force that President Obama established shortly after first taking office, while the other eight were approved for release between May 2014 and December 2016 by Periodic Review Boards, another high-level, inter-agency review process, and one that campaigners must also press Donald Trump to keep. Read the rest of this entry »

Review Board Approves “Forever Prisoner” Ghaleb Al-Bihani for Release from Guantánamo, But Also Approves Ongoing Detention of Salem Bin Kanad

Six weeks ago, I reported on the Periodic Review Boards for two “forever prisoners” at Guantánamo — Ghaleb al-Bihani and Salem bin Kanad — who are both Yemenis, and were regarded by the Guantánamo Review Task Force, appointed by President Obama to review all the remaining prisoners’ cases in 2009, as too dangerous to release, even though it was acknowledged that insufficient evidence existed to put them on trial.

The PRBs — involving representatives of the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff, who meet at an office in Virginia and hear testimony by, or on behalf of the prisoners by video link from Guantánamo — took place to establish whether these two men should still be regarded as a threat, or whether they should be recommended for release.

This category of prisoner — as opposed to those approved for release, or those recommended for prosecution — is particularly problematical, as it relies on a presumption that the so-called evidence against the Guantánamo prisoners is somehow reliable, when that is patently not the case. The files on the prisoners are for the most part a dispiriting collection of unreliable statements made by the prisoners themselves or by their fellow prisoners in circumstances that were not conducive to telling the truth — immediately after capture, in America’s notorious prisons in Afghanistan, or in Guantánamo, all places and circumstances where torture and abuse were rife; or, in some cases, where bribery (the promise of better living conditions, for example) was used to try to secure information that could be used as evidence. Read the rest of this entry »

Saudi Prisoner Refuses to Attend His Periodic Review at Guantánamo, Complains About Intrusive Body Searches

On Monday, a Saudi prisoner at Guantánamo, Muhammad Abd al-Rahman al-Shumrani, refused to attend his Periodic Review Board, convened to assess whether he should continue to be held without charge or trial, or whether he should be recommended for release. He refused to attend for a reason that his personal representatives — two US military officers appointed to represent him — described as “very personal and tied to his strong cultural beliefs.” The representatives explained that he “has consistently stated his objection to the body search required to be conducted prior to his attendance at legal meetings or other appointments,” adding that he regards “the body search as conducted, which requires the guard to touch the area near his genitals,” as “humiliating and degrading.” The representatives stressed, however, that his refusal to attend, because of his problems with the body search, does “not imply an unwillingness to cooperate.”

The PRBs were set up last year to review the cases of 71 of the remaining 154 prisoners. 46 of these men were recommended for ongoing imprisonment without charge or trial by the high-level, inter-agency Guantánamo Review Task Force that President Obama appointed to review all the prisoner’s cases shortly after he took office in 2009.

The task force issued its report recommending prisoners for release, prosecution or ongoing imprisonment in January 2010, and in March 2011 President Obama issued an executive order authorizing the ongoing imprisonment of the 46 men, on the basis that they were too dangerous to release, even though insufficient evidence existed to put them on trial. Read the rest of this entry »

Guantánamo Review Boards (3/3): Salem Bin Kanad, from Riyadh, Refuses to Take Part in a System That Appears Increasingly Flawed

This article, looking at the recent Periodic Review Board for Salem bin Kanad, a prisoner held at Guantánamo since January 20, 2002, is the last of three providing updates about developments in the Periodic Review Boards, a system put in place last year to review the cases of 71 prisoners (out of the 154 men still held), who were designated for indefinite detention without charge or trial, or designated for trials that will not now take place. The original recommendations were included in a report that was issued in January 2010 by a high-level, inter-agency Guantánamo Review Task Force that President Obama had appointed to review the cases of all the prisoners still held when he took office in January 2009.

The task force recommended 48 men for indefinite detention without charge or trial, on the extremely dubious basis that they were too dangerous to release, even though it was conceded that insufficient evidence existed to put them on trial — which means, of course, that the so-called “evidence” is no such thing. In March 2011, President Obama responded to the task force’s recommendations by issuing an executive order authorizing their ongoing imprisonment without charge or trial, although he did promise that the men would receive periodic reviews to establish whether they should still be regarded as a threat.

Disgracefully, the Periodic Review Boards did not begin until last November, after two of the 48 “forever prisoners” had died, and 25 other men had been added to the list of prisoners eligible to take part in them — men who, although recommended for trials, will not now be prosecuted, after appeals court judges overturned two of the only convictions in the military commissions at Guantánamo, on the basis that the war crimes of which the men had been convicted were not internationally recognized, and had been invented by Congress. The boards consist of representatives of the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff, who meet at an office in Virginia and hear testimony by video link from Guantánamo. Read the rest of this entry »

Guantánamo Review Boards (2/3): Ghaleb Al-Bihani, a Cook, Asks to Be Sent Home to Yemen or to Another Country

Last week, I published the first of three new articles about the Periodic Review Boards at Guantánamo, looking at the hearing for a Yemeni prisoner, Ali Ahmad al-Razihi, who had the opportunity to ask for his freedom on March 20.

Ali is one of 71 prisoners — out of the 154 men still held — who were either designated for ongoing imprisonment without charge or trial in January 2010 by the high-level, inter-agency Guantánamo Review Task Force that President Obama established shortly after taking office in 2009 (46 men in total), or were recommended for prosecution (25 others).

The 46 had their ongoing imprisonment without charge or trial approved by President Obama in an executive order issued in March 2011, on the alarming basis that they were allegedly too dangerous to release, even though insufficient evidence existed to put them on trial. The president tried to sweeten this unacceptable endorsement of indefinite detention by promising that the men would receive periodic reviews of their cases, but the first of these did not take place until last October. Read the rest of this entry »

Read the Center for Constitutional Rights’ “Faces of Guantánamo” Reports

In December, I was privileged to work with the New York-based Center for Constitutional Rights on three reports about Guantánamo that were published to mark the 10th anniversary of the opening of the prison on January 11, 2012, and released at a press conference in Washington D.C. that I reported here. The three reports are entitled, “Faces of Guantánamo: Resettlement,” “Faces of Guantánamo: Indefinite Detention,” and “Faces of Guantánamo: Torture” (also available via this page) and they present a comprehensive analysis of Guantánamo’s history, President Obama’s failure to close the prison as he promised, and profiles of 20 of the 171 prisoners still held.

The first report, “Faces of Guantánamo: Resettlement,” focuses on the 89 prisoners still held who were cleared for release by President Obama’s Guantánamo Review Task Force, but who are still held either because they cannot be safely repatriated, and no country has volunteered to offer them a new home, or because they are Yemenis, and both the President and Congress have acted to prevent the release of any cleared Yemeni prisoners, even though this constitutes guilt by nationality, which is an indefensible generalization, and ought to be regarded as a profound shame.

The article explains in detail President Obama’s failures, including his refusal to allow any innocent prisoners (the Uighurs, Muslims from China’s Xinjiang province) to be settled in the US, and also describes how Congress has intervened to prevent the release of prisoners for nakedly political reasons. Included are recommendations for the Obama administration, and calls for other countries to help with the resettlement of those who cannot be safely repatriated. Read the rest of this entry »

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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