In a recent article, "On Guantánamo, Lawmakers Reveal They Are Still Dick Cheney’s Pawns," I spelled out my despair and disgust at lawmakers from both parties (their names can be found here, here and here), who, since May, have voted for legislation severely curtailing President Obama’s ability to close the prison at Guantánamo Bay, Cuba by his self-imposed deadline of January 22, 2010, and who, as a result, have sent just one resounding message to the American people and the wider world: the ghost of Dick Cheney still stalks the corridors of power.
In the article, I ran through these disturbing developments, explaining how, in May, the Senate voted overwhelmingly in favor of an amendment to the Supplemental Appropriations Act of 2009, which eliminated $80 million from planned legislation intended to fund the closure of Guantánamo, and specifically prohibited the use of any funding to "transfer, relocate, or incarcerate Guantánamo Bay detainees to or within the United States," and how, in June, the House of Representatives followed up by passing a spending bill turning down the administration’s request for $60 million to close Guantánamo, which also prohibited funds from being used to release detainees from Guantánamo into the United States. The spur for my article came just last week, when Representatives voted overwhelmingly for a nonbinding motion proposed by Rep. Hal Rogers (R-Ken.), "clearly prohibiting" the transfer of any Guantánamo prisoner to the United States "for whatever reason"; in other words, even for federal court trials, or some revision of the horribly flawed Military Commission trial system favored by the Bush administration.
I’m pleased to say that I was not alone in my despair. On Tuesday, Attorney General Eric Holder stated, "The restrictions that we’ve had to deal with on the Hill give me great concern," adding, as the Associated Press described it, that he "disputed the claim, made often by Republican lawmakers, that Guantánamo Bay detainees are simply too dangerous to be brought to US soil." "I don’t see how that in fact is accurate," Holder said, adding, "You can go through a litany of very, very dangerous people who are safely housed in facilities that pose no dangers to the communities that surround them." Citing the examples of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, and the "Unabomber" Ted Kaczynski, he stated, "I think we have a good track record."
In combating the fearmongering in Congress that, on last week’s showing, threatens to completely derail the administration’s ability to close Guantánamo at all, Holder was echoing important points made by President Obama in a major national security speech in May, when he stated:
[W]e will be ill-served by some of the fear-mongering that emerges whenever we discuss this issue. Listening to the recent debate, I’ve heard words that are calculated to scare people rather than educate them; words that have more to do with politics than protecting our country … [B]ear in mind the following fact: nobody has ever escaped from one of our federal "supermax" prisons, which hold hundreds of convicted terrorists. As Senator Lindsey Graham said: "The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational."
Over the last few days, following intense negotiations, it appears that the administration has managed to persuade Democratic senators and congressmen to accept that prisoners can be brought to the US to face trial, although, as Reuters added, the measure added by the Senate stipulated that the administration "would be required to present a risk assessment and give 14 days’ notice before bringing any of the 223 detainees remaining in the facility to the United States to face charges in American courtrooms." Moreover, although Democrats in the House of Representatives also added an amendment to their bill — less generously demanding that the president provides a "comprehensive disposition plan" at least 45 days before any proposed transfer — these measures still "face a tough vote" before the full Senate and the House of Representatives (as Reuters explained), especially after the widespread capitulation last week to Rep. Rogers and his paranoid talk about "the American people" and their fears of "terrorists in their hometowns, inciting fellow prisoners, abusing our legal system, and terrorizing their communities."
However, although this is progress of a sort, it should not be forgotten that the nation’s lawmakers persistently failed to call a halt to the excesses of the Bush administration, and, in fact, played a decisive role in propping up a lawless regime by endorsing two pieces of dreadful legislation (the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006), which purported to strip the prisoners of the habeas corpus rights they were granted by the Supreme Court in 2004, revived the Commissions after the Supreme Court ruled them illegal, and also sought to grant immunity for any wrongdoing to the entire Bush administration.
For these lame apologies for legislative scrutiny, lawmakers were severely chastised by the Supreme Court in June 2008, when the nation’s senior judges restored the prisoners’ habeas corpus rights and ruled that the habeas-stripping aspects of the DTA and MCA had been unconstitutional, but as Lt. Col. David Frakt, law professor and former military defense attorney for Guantánamo prisoner Mohammed Jawad explained to me in an email this week, Congress is still behaving unconstitutionally with regard to the right of the Executive branch and the Judiciary to order the release of prisoners from Guantánamo who have won their habeas corpus petitions.
Drawing on the experience of Mohammed Jawad — just one of the 30 prisoners (out of 38 in total) whose release has been ordered by a judge after finding that the government had failed to establish, "by a preponderance of the evidence," that they had any connection to either al-Qaeda or the Taliban — Lt. Col. Frakt pointed out, with reference to an article I had written suggesting that 31 cleared prisoners in Guantánamo could be released immediately, that I had neglected to mention that an impediment to their immediate release had been established by Congress, which, in summer, "passed a law that requires the Administration to give Congress 15 days notice before releasing anyone from Guantánamo." Lt. Col. Frakt added, "This was why, when Mohammed Jawad was ordered released, it still took 22 days to release him. The Department of Justice said they needed a week to prepare the notice and then he couldn’t be released until 15 days after that."
Crucially, Lt. Col. Frakt explained:
I consider this Congressional notification requirement to be blatantly unconstitutional as a violation of the separation of powers. In Jawad’s case, it meant that after the Executive Branch and the Judiciary had concluded there was no lawful basis for the military to detain Mohammed Jawad (after the Department of Justice ultimately conceded the habeas corpus petition), the military was required to continue to detain him at Guantánamo at the order of the legislature, Congress. As I explained in Federal District Court, this placed Jawad in the status of "Congressional prisoner," a status for which there is no Constitutional authority.
After explaining that Jawad’s defense team "chose not to challenge this ridiculous provision, because a challenge would have likely taken months to work its way through the courts," Lt. Col. Frakt concluded:
It may be that, if the US is contemplating releasing a detainee that it has the lawful basis to detain under the laws of war, that Congress can legitimately condition the expenditure of US funds to effectuate the release on the provision of this notification to Congress, but for those detainees determined to be unlawfully held, this law simply arbitrarily extends their unlawful stay at Guantánamo. This provision, coupled with the refusal to authorize funds for detainees to be resettled in the United States — even those determined to be innocent of any wrongdoing who should qualify for political asylum — shows the extent of Congressional depravity on any issues related to detainees.
These are tough words, but no less than lawmakers deserve, and as the battle over Guantánamo’s future continues throughout the fall, I hope that officials in the Obama administration will be able to make good use of them. As Lt. Col. Frakt so ably points out, it is completely unacceptable that, on Guantánamo, both the Executive and the Judiciary are now at the mercy of Congress, where lawmakers are not only continuing to endorse Dick Cheney’s evidence-free rationale for arbitrary detention, but have also seized arbitrary detention powers for themselves.
Note: Regular readers will recall that Lt. Col. Frakt was formerly Maj. Frakt, and I’m delighted to announce that he was promoted on October 1 — and that there are, therefore, some rewards for military lawyers who defend the principles they have sworn to uphold.