Those of us who have been studying Guantánamo closely were not surprised when, on March 7, President Obama announced that he was lifting a ban on trials by military commission at Guantánamo, which he imposed on his first day in office in January 2009, and also issued an executive order establishing a periodic review of the cases of prisoners recommended for continued indefinite detention without charge or trial by the Guantánamo Review Task Force, a group of 60 officials and lawyers, from government department and the intelligence agencies, who reviewed all the Guantánamo cases in 2009.
Neither was surprising, because the president announced in May 2009, during a major speech on national security at the National Archives, that the military commissions were back on the table, joining federal court trials as an option for trying those held at Guantánamo, and in that same speech he also announced that some prisoners would continue to be held indefinitely without charge or trial.
The return of the military commissions
Since then, military commissions already established under President Bush have proceeded to trial — or, in fact, to plea deals instead of a trial — in the cases of three prisoners: Ibrahim al-Qosi in July last year, Omar Khadr in October, and Noor Uthman Muhammed last month, and it seems probable that the trials of three other men recommended for trial by military commission in November 2009 and January 2010 by Attorney General Eric Holder will now proceed swiftly.
These men are: Abd al-Rahim al-Nashiri, a Saudi, and the alleged mastermind of the al-Qaeda attack on the USS Cole in 2000; Ahmed al-Darbi, a Saudi seized in Azerbaijan and accused of involvement in an unrealized plot to attack a ship in the Strait of Hormuz; and Obaidullah, an Afghan accused of playing a peripheral role in the insurgency against U.S. forces in Afghanistan. All the cases have problems — Darbi’s, because of his detailed allegations that he was subjected to torture; Obaidullah’s, because he was a nobody involved in an insurgency and did nothing that could remotely be described as a war crime; and al-Nashiri, in particular, because, after his capture in the UAE in the fall of 2002, he was rendered to secret CIA prisons in Thailand and Poland, where he was subjected to the torture technique known as waterboarding, a form of controlled drowning.
In the cases of al-Darbi and Obaidullah, it seems probable that the administration will avoid, in one case, a torture-laced legal minefield, and in the other, a demonstration of how, embarrassingly, to equate the pursuit of terrorists with a legitimate insurgency, by reaching plea deals. However, it seems unlikely that anyone in a position of authority would want to strike plea deal with al-Nashiri, given the severity of his alleged crimes and his alleged role in al-Qaeda, and if this is the case then the authorities will not only be obliged to sidestep any mention of his torture, which may be difficult as it was covered in the CIA Inspector General’s report on torture in 2004, and al-Nashiri has also been granted “victim” status in an ongoing investigation of the CIA’s torture prison in Poland.
Just as significant is the fact that an actual trial — rather than a plea deal — runs the very real risk of exposing that the supposed war crimes included in the military commissions — conspiracy and providing material support to terrorism, for example — are not legitimate war crimes at all, but were, instead, invented by Congress in 2006 and maintained, despite high-level criticism by Obama administration officials, when a revived version of the commissions was approved by Congress in the Military Commissions Act of 2009.
Beyond these difficulties, where Obama’s announcement breaks new ground is in opening up the probability that many of the other 30 prisoners still held who were recommended for trials by the Task Force will also be tried by military commission — perhaps even Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks. These men were put forward for federal court trials in November 2009, but the plans were shelved in the wake of a backlash by Republicans and members of Obama’s own party.
Personally, I think that the military commissions remain illegitimate, but given Congress’s refusal to allow any Guantánamo prisoners to be brought to the U.S. mainland to face trials (which was included in a major military defense spending bill last December, and was a nakedly political move, as well as being blatantly unconstitutional), military commissions are, at present, the only option for trials available to the prisoners. Pragmatically, if these continue to involve plea deals in exchange for short sentences — and the administration honors those plea deals — then, despite being fundamentally flawed, they provide what may be the only way in which prisoners can ever leave Guantánamo.
To understand why this is the case, it is necessary to reflect on the fact that 89 of the remaining 172 prisoners were cleared for release by the Task Force, but are going nowhere either because they are Yemenis, and Obama issued a moratorium on the release of any of the 58 cleared Yemenis last January, after it was discovered that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen, or because they cannot be repatriated because they face the risk of torture or other ill-treatment in their home countries. These 31 men cannot be resettled in the United States because of opposition by the president, by the D.C. Circuit Court, and by Congress, and it is uncertain if third countries will be prepared to offer them new homes. As a result, all 89 prisoners appear to have less chance of leaving Guantánamo than their fellow prisoners who reach plea deals in their trials by military commission, and can, as I have been explaining all year, be legitimately be described as political prisoners.
Indefinite detention at Gitmo
Also less fortunate than those facing trials by military commission are the 47 men designated for indefinite detention without charge or trial. The executive order formalizing their detention and providing for periodic reviews of their status, which was issued on March 7, was flagged up before Christmas, but was clearly on the cards from January 2010, when the Task Force submitted its report to the president, recommending that 48 of the remaining prisoners — one of the 48 died in Guantánamo last month — should continue to be held indefinitely without charge or trial because “prosecution is not feasible in either federal court or a military commission.”
There are several problems with this proposal, of course — beyond their distressing reinforcement of the very basis on which George W. Bush established Guantánamo in the first place — not the least of which concerns the Task Force’s belief that these men can be regarded as dangerous without evidence that can be used to prove their case. As I explained in December:
The Task Force attempted to explain that “the principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainees was tainted,” but its explanations were unconvincing. Behind claims that “the intelligence about them may be accurate and reliable,” even though it was gathered in dubious circumstances, and that, in many cases, “there are no witnesses who are available to testify in any proceedings against them,” lies a blunter truth, as I explained [in an analysis of the Task Force’s report in June 2010]: “that the intelligence, and whatever witness availability there might be, are both tainted by the circumstances under which ‘the gathering of intelligence’ took place — the coercive interrogations, and in some cases the torture, of the prisoners themselves, or of their fellow prisoners.”
To demonstrate this, I referred to the 59 habeas petitions examined by judges in the District Court in Washington D.C., in which 38 have been won by the prisoners, noting:
[T]hese problems have been highlighted again and again by judges, with an objectivity that eluded the Task Force — as, for example, in the cases of Fouad al-Rabiah, a Kuwaiti put forward by President Bush for a trial by military commission, who was freed after a judge ruled that the entire case against him rested on a false narrative that he had come up with after torture and threats, and, to cite just two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan, and Mohammed El-Gharani, a Chadian national, who was just 14 when he was seized in a raid on a mosque in Pakistan. In both cases, they were freed after judges ruled that the government’s witnesses — the men’s fellow prisoners — were irredeemably unreliable, and were, if not subjected to violence, then bribed to produce false statements.
It is, therefore, rather disingenuous of the Task Force to claim that “the principal obstacle to prosecution” for these  men “typically did not come from … concerns that the evidence against the detainee[s] was tainted,” when, to be frank, the record is replete with examples proving the opposite.
Another problem is that the executive order establishes a review process for the 47 men, consisting of Periodic Review Boards (PRBs), which are remarkably similar to the review process established by the Bush administration — the Combatant Status Review Tribunals (CSRTs) — that the Supreme Court found inadequate when it recognized the prisoners’ constitutionally guaranteed habeas corpus rights in June 2008.
As with the CSRTs, the men will be presented with an unclassified summary of the allegations against them, will be represented by a “personal representative” (not a lawyer), will be allowed to refute the charges against them (although without the means to do so), will be able to “call witnesses who are reasonably available,” and will also run up against classified evidence that they will not be allowed to see — although there is a provision for them to “receive a sufficient substitute or summary, rather than the underlying information,” if the government plans to rely on classified evidence (as it undoubtedly will, or trials would be going ahead in these cases).
Although I am reassured that, as the administration describes it, the executive order “is intended solely to establish, as a discretionary matter, a process to review on a periodic basis the executive branch’s continued, discretionary exercise of existing detention authority in individual cases,” and also that it “does not create any additional or separate source of detention authority,” and “does not affect the scope of detention authority under existing law,” it is disingenuous of the administration to follow up by stating, “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.”
This is because, despite its reassurances, the administration has always behaved as though the habeas legislation is a distraction, and it has only ever believed in the Task Force’s findings — hence its decision to pre-judge 48 men whose habeas petitions might have delivered different outcomes, obviating the need for executive review.
In addition, the executive order demonstrates another fundamental problem with the administration’s approach to Guantánamo — and one that has also eluded the District Court dealing with the men’s habeas petitions. This relates to the legislation that underpins the Guantanamo detentions in the first place — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, 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 them, but failed to distinguish between al-Qaeda (a terrorist group) and the Taliban (a government, however reviled).
As the habeas legislation has showed, the majority of the men who have lost their petitions are nothing more than foot soldiers for the Taliban, who had no knowledge of al-Qaeda’s international terrorist operations, and who should, as a result, have been held as prisoners of war protected by the Geneva Conventions.
Included in the 47 men designated for indefinite detention, these soldiers remain tainted by the administration’s claims that they are “too dangerous to release,” when the truth is that the AUMF remains the flawed foundation document of the “war on terror,” and those held at Guantánamo should either be released (without delay), charged in connection with terrorist offenses (which are crimes and not “acts of war”), or re-designated as prisoners of war, who can be held until the end of hostilities.
This, however, would involve recognizing them as soldiers, and not as the kind of shadowy, ill-defined terrorist threats that were invoked so successfully by the Bush administration, and that Obama has done nothing to dispel. This refusal to tackle the foundational problems of Guantánamo not only continues to fuel hysteria in the United States about the soldiers held in Guantánamo, but has also led to a shameful indifference towards putting on trial the handful of people genuinely accused of involvement in acts of international terrorism (including the 9/11 attacks), even though bringing these men to justice ought to have been the purpose of the “war on terror” all along.