A Start on Guantánamo, but Not Enough

Speaking at a press conference to mark his first 100 days in office, Barack Obama made two bold claims about the policies he has already implemented to tackle the executive overreach of the Bush administration, with regard to detention and interrogation policies in the "War on Terror."

"We have rejected the false choice between our security and our ideals by closing the detention center at Guantánamo Bay and banning torture without exception," the President said.

Unfortunately, neither claim is strictly true, as I aim to demonstrate in two articles, with particular reference to the three executive orders that Barack Obama issued as one of his first acts as president.

In the first order, which is the focus of this article, Obama stipulated that Guantánamo would close within a year. He also established an inter-departmental review of the cases of the remaining prisoners, a requirement to assess whether the prison conformed to the standards required by the Geneva Conventions, and a request for the reviled system of trials by military commission at Guantánamo (the "dark side" of the law, as envisaged by Dick Cheney and David Addington) to be halted for four months. The second and third orders will be dealt with in the following article, looking at Obama’s progress on "banning torture without exception."

A Misleading Statement, and Too Few Released Prisoners

While Obama is to be credited for issuing these orders, his decision to state, "We have rejected the false choice between our security and our ideals by closing the detention center at Guantánamo Bay," rather than, "We have rejected the false choice between our security and our ideals by ordering the closure of Guantánamo by January 20, 2010," is rather too economical with the truth for my liking.

Moreover, while the review established by Obama, which is being "conducted with the full cooperation and participation" of the attorney general; the secretaries of defense, state, and homeland security; the director of national intelligence; and the chairman of the Joint Chiefs of Staff, got off to a flying start, it has, to date, accomplished very little. Just one prisoner, Binyam Mohamed, has been released, and this, it must be noted, only came about because the story of his "extraordinary rendition" and torture, which was the subject of court cases on both sides of the Atlantic, meant that he was fast-tracked to the top of the list to avoid embarrassment to either government. And beyond Mohamed, only one other prisoner – the Yemeni doctor, Ayman Batarfi – has been cleared for release.

The Ongoing Problems of Clearing Prisoners and Rehousing Them

At this rate, of course, it will take decades to close Guantánamo, but last Wednesday, on a visit to Europe, Attorney General Eric Holder stated that, as a result of the administration’s ongoing review, around 30 prisoners would soon be ready for release. He added that the Justice Department would be approaching allies about taking specific prisoners "within weeks as opposed to months," but he did not explain whether the 30 prisoners he was referring to were new cases examined as part of the review, or whether they included some or all of the 60 or so prisoners who have already been cleared for release.

About 40 of these men were approved for release after their cases were reviewed by multiple military review boards at Guantánamo, and the rest were ordered to be freed by courts on the U.S. mainland within the last six months, when, after long delays, the lower courts were finally empowered to review the prisoners’ claims for habeas corpus, following last June’s Supreme Court ruling in Boumediene v. Bush.

The distinction is important, as it would be distressing to discover that the Obama administration felt the need to revisit decisions already made by the U.S. military, but it would not be entirely surprising if this were the case, because the administration has already caused spikes of discontent in the courts, where certain judges appear to be coming to the conclusion that the administration seems to regard its own review process as more significant than the habeas reviews.

Mutiny in the Courts

Just three weeks ago, AFP reported that two habeas judges had made a rare public show of their impatience with government prosecutors. Judge Colleen Kollar-Kotelly, appalled by a government lawyer who "repeatedly missed deadlines" in the cases of four Kuwaiti prisoners, wrote that his "compliance was not optional," and added that the court had "serious concern about counsel’s ability to read and comprehend its orders." Judge Emmet Sullivan was equally outraged by government lawyers’ "repeated" delays in providing unclassified exculpatory material to the defense in the case of a Yemeni prisoner. Judge Sullivan said, "To hide – and I don’t use that word loosely – to hide relevant and exculpatory evidence from counsel and from the court under any circumstance … is fundamentally unjust, outrageous, and will not be tolerated." Threatening to sanction the government, he added, "How can this court have any confidence whatsoever in the U.S. government to comply with its obligation and to be truthful to the court?"

Speaking to AFP, David Cynamon, a lawyer for the Kuwaitis, stated his belief that the government was "trying to delay these cases until the review team can make decisions without pressure," and another lawyer said, "The Obama administration would probably prefer that some cases stop for a while." These were worrying comments, although there seems little reason to doubt them, but an additional assertion by the second lawyer, that "the habeas lawyers have represented these men for four or five years and are not content to wait any longer," was particularly relevant, because, after the long struggles it took to secure legal rights for the prisoners in Boumediene, and to rein in the executive over the course of seven years, it was unsurprising that both judges and lawyers would be perturbed to find themselves apparently overridden by the executive again.

Focus on the Uighurs

These are not the only troubles. When it comes to the prisoners who have already been cleared for release, it has long been known that the majority of these men face enormous problems, because they are from countries such as Algeria, China, Libya, Tunisia, and Uzbekistan, and there are fears that they will face torture if they are repatriated (as prohibited in the UN Convention Against Torture). However, as I reported in March, six Saudis have been cleared since before Obama came to power, and yet they still languish at Guantánamo, despite a long-established rehabilitation program in Saudi Arabia that has seen the successful return and reeducation of the majority of Guantánamo’s Saudi prisoners.

In addition, the administration has dragged its heels over the Uighurs, Muslims from China’s Xinjiang province, who comprise 17 of the 23 prisoners whose release was ordered after their habeas reviews, but who are still held in Guantánamo. (To date, just three men have been released since being cleared by the courts.)

The release of the Uighurs into the United States was ordered last October by District Court Judge Ricardo Urbina, in a ruling that was notable for his assertion that, because the government had accepted that it had no case against them, their continued detention was "unconstitutional," and that, because no other country could be found that was prepared to enrage China by accepting them, they should be accepted onto the U.S. mainland. Shamefully, the Bush administration appealed, and the new government did nothing in response when, on Feb. 18, a notoriously conservative appeals court reversed Urbina’s principled ruling.

This impasse, too, may soon be coming to an end, if reports last week are to be believed. According to a report in the Los Angeles Times last week, the Obama administration was preparing to admit into the United States as many as seven of the Uighurs, even though the decision "is not final and faces challenges from within the government," in particular from the Department of Homeland Security. As the Times also explained, however, administration officials "believe that settling some of them in American communities will set an example, helping to persuade other nations to accept Guantánamo detainees too." This is undoubtedly correct, as European countries, still shocked by the brusqueness with which Bush officials – and even the president himself – demanded that they help out, while refusing to do anything themselves, need positive encouragement to help clear up what is widely regarded as America’s mess.

To his credit, Eric Holder noted this in a speech during his European visit, when he stated, "I know that Europe did not open Guantánamo and that in fact, a great many on this continent opposed it, but as we turn the page to a new beginning, it is incumbent on us all to embrace new solutions, free from the rancor and rhetoric that divided us in the past." However, it still remains the case, as I have been explaining since Obama came to power, that accepting the Uighurs into the U.S. would be the most effective way to break this particular deadlock.

A Sleight of Hand on Detention Policies, and Further Concerns in Court

Even if the Uighurs’ resettlement goes ahead, this is still not the end of the Obama administration’s problems with Guantánamo. In March, in a court filing that introduced the "current, novel type of armed conflict" as a replacement for the Bush administration’s "War on Terror," the government also dropped the use of the term "enemy combatant," but, crucially, maintained a similar definition for the now nameless prisoners as the one invented by its predecessors. Whereas Bush had insisted that he could hold people outside the law who were "part of, or supporting, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners," the new administration kept this definition largely intact, but added that individuals who supported al-Qaeda or the Taliban were "detainable only if the support was substantial."

As I wrote at the time, this supposed change was actually worthless, as a close inspection of the government’s assertions revealed that it proposed to detain someone who never even "attempted to commit any act of depredation or entered the theater or zone of active military operations" and may only have stayed in a house associated with those who did engage in militancy. It was, moreover, noticeable that the government’s whole approach perpetuated the Bush administration’s myth that it was justifiable to equate the Taliban with al-Qaeda, even though one was a government (however reviled) and the other was a small group of terrorists.

In a response filed shortly after the government announced its sleight of hand, lawyers for some of the Guantánamo prisoners argued, as SCOTUSblog described it, that the new government was "still asserting too much authority. The president, they contended, is engaging in ‘impermissible lawmaking’ by the executive branch, intruding on Congress’ powers."

Last week, the habeas cases took another turn, when Judge Reggie B. Walton largely supported the government’s position, but warned that he was laying down some inviolable "limiting principles." As SCOTUSblog again explained, he "rejected arguments by detainees’ lawyers that only an individual who was taking part in active hostilities against the U.S. at the time of capture could be detained," although he said he had some "distaste for the government’s reliance on the term ‘support’ at all," and also made it clear that he was only prepared to accept the terms "substantially supported" and "part of" if they were "interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture."

Expanding on his chosen definition, Judge Walton also stated, "Only persons who receive and execute orders from the enemy’s command structure" could be held as members of enemy armed forces, adding, "The key question is whether an individual receives and executes orders from the enemy force’s combat apparatus. … The individual must have some sort of ‘structured’ role in the ‘hierarchy’ of the enemy force." This, he stated, could include those who "provided housing, feeding or transporting ‘al-Qaeda fighters,’ such as a cook who was a part of the armed forces but was temporarily assigned only a non-combat role," but he averred that it did not include "civilians who may have some tangential connections to such organizations," adding that "[s]ympathizers, propagandists, and financiers" who had "no involvement" with the command structure, even if they were "members of the enemy organization in an abstract sense," could not be held unless they took "a direct part in hostilities."

This was sufficiently different from the views of other judges – for example, Judge Richard Leon, who "has been using a detention definition that gives the government more authority than the Obama administration now claims" – for SCOTUSblog to note, "Sooner or later, the Supreme Court may have to sort it all out."

Nearly a year after Boumediene, this wrangling is doing nothing to address the Supreme Court’s concern that "the costs of delay can no longer be borne by those who are held in custody," but from my point of view the main problem is not with the courts’ attempts to work out where the lines should be drawn, but with the Obama administration’s close adherence to its predecessor’s rationale, which does not bode well for the outcome of Obama’s review and makes me wonder if other disturbing developments are in store.

Certainly, there have been other disappointments. In February, the Pentagon’s review of conditions at Guantánamo concluded that they met the standards required by the Geneva Conventions, even though, at the time, a hunger strike was raging and at least 20 percent of the prison’s population was being brutally force-fed, and beaten if they resisted; and the initial expectation that the military commissions would not be resuscitated at the end of the four-month review period is now looking a shade more dubious at least.

Will the Military Commissions Be Revived?

Also in February, I complained that the Pentagon, under Defense Secretary Robert Gates (unnervingly, the same man employed by George W. Bush), retained other Bush officials in worryingly high places (Susan Crawford, for example, a protégé of Dick Cheney and a close friend of David Addington, who oversees the military commissions), and a week after Obama took office the commissions’ recently appointed chief judge, Army Col. James M. Pohl, refused to suspend the arraignment of the Saudi prisoner Abdul Rahim al-Nashiri, until it was called off by Crawford. In what appeared to be a snub to the new president, Col. Pohl stated that "he found the prosecutors’ arguments, including the assertion that the Obama administration needed time to review its options, to ‘be an unpersuasive basis to delay the arraignment.’"

After this, the commissions went quiet, but on Wednesday Col. Patrick Parrish, the judge in the case of Omar Khadr, the Canadian who was just 15 years old when he was seized, half-dead, after a firefight in Afghanistan in July 2002, notified his lawyers that pre-trial hearings would recommence on June 1, unless he was notified to the contrary by the government. This means that either Col. Parrish is being somewhat provocative or he expects the administration to press ahead with the trials after the four-month freeze expires (as the New York Times suggested in a worrying article on Saturday, in which senior officials, speaking anonymously, said that "administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts"). Either way, it is a troubling development for those who hoped that the administration would shut down the commissions without hesitation and resist all calls to reinstate them, amend them, or set up another novel and untried system, and would, instead, move the prisoners regarded as genuinely dangerous to the mainland to face trials in federal court.

The Dark Specter of Preventive Detention

According to Lawrence Wilkerson, Colin Powell’s former chief of staff, "no more than a dozen or two of the detainees" held in Guantánamo ever had any worthwhile intelligence. Wilkerson’s statement, included in a column he wrote in March, was particularly significant, as it should indicate that no more than two dozen prisoners should face a trial, and that the rest – though many were low-level fighters for the Taliban – should be released.

However, within hours of President Obama’s 100 Days speech, in a genuinely disturbing development that mirrors what Robert Gates’ former masters used to say with monotonous regularity, the defense secretary announced to members of the Senate Appropriations Committee that the question was "still open" as to what the government should do with "the 50 to 100 [prisoners] – probably in that ballpark – who we cannot release and cannot try."

Back in Bush’s day, these same men were sometimes referred to as those who were "too dangerous to release but not guilty enough to prosecute" – essentially because the supposed evidence against them was extracted through the use of torture or coercion. Regardless of how they are described, however, the notion that there is now an acceptable "third way" between the guilty and not guilty verdicts delivered in a courtroom is almost incredibly disturbing, not only because, yet again, it attempts to exert executive authority over the courts’ ongoing habeas reviews, but also because it will undoubtedly play into the hands of those lawyers – including Neal Katyal, a law professor who helped overthrow the first incarnation of the military commissions in June 2006 (in the case of Salim Hamdan) – who have recently taken positions in the government (Katyal is the principal deputy solicitor general) and are advocating for a system of preventive detention to be established.

Just think about it: These are men against whom the information that purports to be evidence was often gathered by extremely dubious or downright illegal means, including the use of torture. It cannot therefore be used in a U.S. court, although real evidence – such as the kind based on detective work or non-coercive interrogations – can. And yet, because of a suspicion that, if they were to be released, these men would at some point in the future commit an offense, we are told, by those advocating a system of preventive detention, that they should be imprisoned forever on the basis of secret evidence.

As Kenneth Roth, the executive director of Human Rights Watch, explained in March, "A regime of preventive detention would be perilous for the liberty of U.S. citizens and others. It would enable the U.S. government to detain individuals for an indeterminate period based on predictions about the danger they might pose in the future, rather than on provable crimes that they had actually committed."

You can draw whichever dystopian conclusion you wish, so long as it’s one of the following:

  • That’s the same as Guantánamo.
  • You can’t imprison people, based on evidence that can’t be tested, for what they may or may not do in the future.
  • Who will be next? The poor? Political protesters? You and me?

Author: Andy Worthington

Andy Worthington is a historian based in London. He is the author of The Guantánamo Files, the first book to tell the stories of all the detainees in Guantanámo. He writes regularly on issues related to Guantánamo and the "War on Terror" on his Web site.