Yesterday, I was rung by a journalist from Press TV, asking me to discuss my recent article, US Judge Rules Against Military Detention of US Terror Suspects – But What About the Foreigners in Guantánamo?

My three and a half minute commentary is available here, and in it I reiterated that, while I fully understand the outrage in the United States about the provisions demanding the mandatory military of alleged terror suspects — including US citizens — that were included by dangerously deluded or cynical lawmakers in last year’s National Defense Authorization Act (NDAA), what has been largely missing from the conversation is a recognition that this assault on the rights of American not to be arbitrarily imprisoned by their own government would not have been possible without the existence of Guantánamo.

At Guantánamo, foreigners — but not Americans — have been arbitrarily detained for ten years, and opponents of the NDAA also need to recognize that the legislation that underpins al of these outrageous detention provisions (both at Guantánamo and in the NDAA) is the Authorization for Use of Military Force (AUMF), which urgently needs repealing, as I explained in an article last year, After Ten Years of the “War on Terror,” It’s Time to Scrap the Authorization for Use of Military Force. Read the rest of this entry »

Last week, in New York, a US judge, District Judge Katherine Forrest, took a stand against a contentious provision inserted into the current National Defense Authorization Act (PDF), ruling that it was unconstitutional for lawmakers to demand that, in future, those accused of involvement with terrorism — including US citizens and residents — must be subjected to mandatory military custody, and held indefinitely without charge or trial (PDF).

The provision (Section 1021), designed to allow detention without trial until the end of the hostilities in the “war on terror,” is meant to apply to anyone “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” or anyone “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

Of particular concern to the plaintiffs in the case — led by the journalist Chris Hedges, and also including Noam Chomsky, Daniel Ellsberg, the Icelandic parliamentarian and WikiLeaks activist Birgitta Jónsdóttir, Kai Wargalla of Occupy London, and the US journalists and activists Jennifer Bolen and Alexa O’Brien — was the inclusion of anyone who “has directly supported … hostilities in aid of such enemy forces,” because they perceived that it could apply to speech, or the written word, endangering journalists and activists, for example, and would contravene Americans’ First Amendment rights. Read the rest of this entry »

Last summer, I wrote an article reviewing ten years of Guantánamo for the Future of Freedom Foundation, for whom I write a weekly column for their online Email Update. This article, however, was for their monthly magazine, Freedom Daily. It was published in the January 2012 issue, to coincide with the 10th anniversary of the opening of Guantánamo on January 11, 2012, and was published online on April 12, and I’m cross-posting it here in the hope that it will provide other readers with an understanding of the depth of the lawlessness that has prevailed at Guantánamo for the last ten years.

The Permanent Injustice of Guantánamo
By Andy Worthington, Freedom Daily, January 2012

When the prison at Guantánamo Bay, Cuba opened on January 11, 2002 as part of the Bush administration’s global “war on terror,” in response to the terrorist attacks of September 11, 2001, it was not immediately apparent that it was a dangerous aberration from recognized laws and treaties that would tarnish America’s name forever.

There had been hints that this was the case — primarily, the fact that a war had been declared when a crime had taken place, and the military order issued by the President in November 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” in which he stated that members of al-Qaeda or those who harbored them could be held by the US military and, if required, subjected to military trials.

Also worrying, when Guantánamo opened, were the photos of the first prisoners to arrive at the prison, shackled in orange jumpsuits, and subjected to sensory depravation, with their eyes and ears closed with blackout goggles and headphones. The photos shocked many of America’s supporters, if not Americans themselves, who were used to orange jumpsuits from their domestic prisons, and had been primed relentlessly since the 9/11 attacks to enthuse over Wild West-style vengeance, and not to ask too many questions. Read the rest of this entry »

Before the terrorist attacks on September 11, 2001, there were only two ways of holding prisoners — either they were prisoners of war, protected by the Geneva Conventions, or they were criminal suspects, to be charged and subjected to federal court trials.

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. Read the rest of this entry »

Last week, when the Senate voted, by 93 votes to 7, to pass the latest National Defense Authorization Act (PDF), they passed legislation that not only approved a budget of $662 billion in military spending for the next fiscal year, but also demanded mandatory military custody for all terror suspects seized in future.

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. Read the rest of this entry »

Yesterday the shameful dinosaurs of the Senate — hopelessly out of touch with reality, for the most part, and haunted by specters of their own making — approved, by 93 votes to 7, the passage of the National Defense Authorization Act (PDF), which contains a number of astonishingly alarming provisions — Sections 1031 and 1032, designed to make mandatory the indefinite military detention of terror suspects until the end of hostilities in a “war on terror” that seems to have no end (if they are identified as a member of al-Qaeda or an alleged affiliate, or have planned or carried out an attack on the United States), ending a long and entirely appropriate tradition of trying terror suspects in federal court for their alleged crimes, and Sections 1033 and 1034, which seek to prevent the closure of Guantánamo by imposing onerous restrictions on the release of prisoners, and banning the use of funds to purchase an alternative prison anywhere else. I have previously remarked on these depressing developments in articles in July and October, as they have had a horribly long period of gestation, in which no one with a grip on reality — and admiration for the law — has been able to wipe them out.

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.” Read the rest of this entry »

As the war in Afghanistan begins its second decade, the reasons for it to be brought to an end are compelling — the ruinous financial cost ($460 billion and counting), the ruinous human cost (over 1,400 US military deaths, and tens of thousands of Afghan civilians killed), and the utter pointlessness of the occupation itself. Having driven out al-Qaeda and the Taliban within a few months of the invasion, the US military, has, for most of the last ten years, been bogged down fighting a regrouped Taliban and an array of other Afghan “insurgents,” fighting to free their country from foreign occupation.

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.” Read the rest of this entry »

“Stop the Machine! Create a New World!” and “Human Needs, Not Corporate Greed!” are the rallying cries of a movement, October2011.org, that launched on June 6 this year, calling for the occupation, on October 6 (yesterday), of Freedom Plaza in Washington D.C. on an open-ended basis. The movement is calling for nothing less than the total transformation of American politics, but the immediate focus today is on the war in Afghanistan, which began exactly ten years ago.

Bringing the war to an end ought to be a priority for the American people on a number of fronts.

Firstly, the war is unwinnable. Ousting al-Qaeda from Afghanistan may have been a success, but the battle for hearts and minds was lost early on, through bombing raids that killed thousands of civilians, and the casual and imprecise violence that led to the imprisonment and abuse of hundreds of Afghan Taliban conscripts in Guantánamo and Bagram. To topple the Taliban, the US worked with brutal warlords, whose corruption, in many cases, had prompted the rise of the Taliban in the first place, and although the Taliban were ousted from power, the pointless diversion into Iraq was ruinous for the muddled and ill-conceived nation-building mission in Afghanistan.

Secondly, the cost is astronomical. According to the Cost of War project, the total cost to date is over $460 billion — and a useful breakdown of that figure, including some mention of what it could have been used to fund instead, is available here. Read the rest of this entry »

Ten years after the “War on Terror” began, the distressing misconceptions and exaggerations on which it was founded continue to plague its victims — and also to corrode America’s belief that it is a nation founded on justice and the law.

Ten years ago, Congress launched this “war,” approving the Authorization for Use of Military Force, a sweeping and overbroad piece of legislation which allowed 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 AUMF led to the equation of al-Qaeda (a terrorist group) with the Taliban (the government of Afghanistan), and the fallout from this decision to regard soldiers and terrorists as one and the same, and to hold both as “enemy combatants” without rights, continues to resonate in the corridors of power, and in US courtrooms.

In tackling the predicament of the Guantánamo prisoners — held, initially, without any rights whatsoever — the Supreme Court granted them habeas corpus rights in June 2004, and, after Congress tried to take those rights away (in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006), the Supreme Court was obliged to reassert the prisoners’ habeas rights in June 2008, and to rule that Congress’s interference was unconstitutional. Read the rest of this entry »

Many Americans probably think that the “War on Terror” began on September 11, 2001, when the terrible terrorist attacks took place, whose 10th anniversary has recently been marked. However, the “War on Terror” actually began on September 14, 2001, when Congress passed the Authorization for Use of Military Force, which authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on 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.”

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.'” Read the rest of this entry »