Obama’s Confusion Over Guantánamo Terror Trials


Barack ObamaSince sweeping into office pledging to undo all the malign results of the Bush administration’s brutal and ill-conceived “War on Terror,” Barack Obama has struggled to make as decisive a point as he did on that first day, when he pledged to close Guantánamo within a year, to ban the use of torture, and to ensure that the US military abided by the Geneva Conventions in its treatment of prisoners.

These promises resurface regularly — most recently during his recent bridge-building speech in Egypt — but in reality the torture promise has been tarnished by an unwillingness to appoint an independent prosecutor to investigate the legality of the Bush administration’s policies, and doubts have arisen about the treatment of prisoners of war because of the administration’s refusal to open up the US prison at Bagram airbase in Afghanistan to outside scrutiny.

On Guantánamo, too, Obama has both dawdled and sent out mixed messages. The inter-departmental review board that he established to review the Guantánamo cases has moved so slowly that only two prisoners were released in the first four months of the new administration, and a spate of releases this week — a Chadian who was just 14 years old when he was seized, an Iraqi, three Saudis and four Uighurs who were sent to Bermuda — seems to have been prompted more by the recent death of Muhammad Salih, a Yemeni prisoner (who allegedly committed suicide), than by any great desire to empty the prison as soon as possible.

In particular, Obama’s refusal to allow the Uighurs (Muslims from China, who last year managed to persuade the Bush administration that they were not “enemy combatants”) to settle in the US, as ordered by a judge last October, has shown that he is susceptible to fearmongering by unscrupulous politicians, and has also hindered efforts to persuade European countries to accept other prisoners cleared for release, who, like the Uighurs, cannot be repatriated because of a risk of torture.

However, the most shocking demonstration of Obama’s inability, or unwillingness to pursue a single, coherent policy and to draw a clear line between himself and his predecessor concerns his proposals for dealing with the relatively small number of prisoners (probably no more than a few dozen) who will be put forward for trial, and another group regarded as too dangerous to release, but who, according to the administration, will not be charged.

For this first group, the President has, in one instance, made a clean break from the Bush years, moving Ahmed Khalfan Ghailani, a “high-value detainee” who spent two years in secret CIA prisons before his arrival at Guantánamo in September 2006, to the US mainland to face a trial in a federal court in New York. Ghailani is accused of participating in the 1998 US embassy bombings in Kenya and Tanzania, and when the Justice Department announced his transfer to the US, Attorney General Eric Holder also pointed out that the Justice Department has “a long history of … successfully prosecuting terror suspects through the criminal justice system,” and, to prove it, attached a list of successful prosecutions over the last 16 years.

However, at almost the same time that the Justice Department was demonstrating a principled return to the rule of law, the New York Times revealed that a Justice Department task force, looking into the proposed trial of five other “high-value detainees” (including Khalid Sheikh Mohammed), who are accused of involvement in the 9/11 attacks, not only recommended trying them in a reworked version of the Military Commission trial system introduced by former Vice President Dick Cheney in November 2001, but also drafted legislation whereby Congress could “clear the way for detainees facing the death penalty to plead guilty without a full trial.”

It is disturbing enough that the Obama administration is thinking of reviving the Commissions, which were almost universally condemned during their seven-year history, ruled illegal by the Supreme Court in 2006, attacked by the  government’s own military judges and lawyers, and unable to deliver more than three dubious convictions, but to propose reviving the Commissions at the same time that the Justice Department was praising the ability of federal courts to successfully prosecute terror suspects is surely a sign of weakness and confusion.

This is, moreover, not the only indication that the Obama administration is struggling to deal coherently with the legacy of the Bush years. Six weeks ago, when the President first floated the idea of reviving the Commissions, he also let it be known that he was considering proposing legislation to authorize the “preventive detention” of 50 to 100 of the Guantánamo prisoners who were regarded as too dangerous to release, but against whom there was not sufficient evidence to pursue a trial.

What this means in reality is that the evidence would not stand up in a court, almost certainly because it was extracted through the torture or coerced interrogations of other prisoners, and the administration’s “preventive detention” proposal is therefore profoundly troubling for a number of reasons: firstly, because it involves an unacceptable willingness to accept as evidence information obtained through torture or coercion; secondly, because it reveals double standards, when, on the one hand, the government is prepared to try those prisoners regarded as the most dangerous, but is also prepared to continue holding those regarded as less dangerous without charge or trial; and thirdly, because it indicates that senior officials have missed the whole point of Guantánamo.

When the Bush administration established Guantánamo — and all its other “War on Terror” prisons — it was based on the arrogant and lawless presumption that, between the guilty and the innocent lay a third category of prisoner, who could, as Guantánamo has demonstrated for over seven years, be held in a permanent state of “preventive detention” — without charge, without trial, without justice.

It is not too late for President Obama to redeem himself, but he needs to shed his fascination with Military Commissions and “preventive detention,” or he will enshrine America as a country forever tainted by the lawlessness of the Bush years.

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). To receive new articles in your inbox, please subscribe to my RSS feed, and also see my definitive Guantánamo prisoner list, published in March 2009.

As published exclusively in the Daily Star, Lebanon, as “Obama is confused over terror trials.” Also cross-posted on Common Dreams.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009).

4 Responses

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    […] Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 17 June […]

  2. Andy Worthington Discusses Guantánamo on Democracy Now! « Dandelion Salad says...

    […] timing of this story allowed me to talk more about how President Obama has failed to seize the initiative on Guantánamo, despite sweeping into office and promising to close the prison within a year, and it would, […]

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    […] should take responsibility for the injustices perpetrated by its predecessor, and should accept cleared prisoners into the United […]

  4. Andy Worthington: Never Forget: The International Day in Support of Victims of Torture | BlackNewsTribune.com says...

    […] should take responsibility for the injustices perpetrated by its predecessor, and should accept cleared prisoners into the United […]

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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 and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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