With just two weeks to go before the ninth anniversary of the opening of the “war on terror” prison at Guantánamo, almost everyone in a position of authority in the United States has failed to resolve, in a satisfactory manner, the bitter legacy left by the Bush administration. In fact, to judge by two recent developments, anything resembling progress on Guantánamo is now at its lowest ebb since June 28, 2004, the day before the Supreme Court recognized habeas corpus rights for prisoners at Guantanamo, shattering the secrecy required to sustain Guantánamo as a prison beyond the law, where coercive interrogations, torture, and human experimentation could all take place.
If you think that sounds like something of an exaggeration, consider that the U.S. Senate has just passed legislation aimed at making sure that every prisoner currently at Guantánamo will remain there for the next year, and will neither be put on trial nor released, even though President Obama’s Guantánamo Review Task Force, consisting of “more than 60 career professionals, including intelligence analysts, law enforcement agents, and attorneys, drawn from the Department of Justice, Department of Defense, Department of State, Department of Homeland Security, Central Intelligence Agency, Federal Bureau of Investigation, and other agencies within the intelligence community,” concluded last year that 33 of the remaining prisoners should be put on trial, and that 90 others should be released.
In their desire to impinge on the president’s authority, however, lawmakers inserted three politically motivated provisions into the annual defense authorization bill, which was passed by the Senate and the House of Representatives last Wednesday, and whose baleful effects will last for the next 12 months.
The first bans the use of any funds to bring any Guantánamo prisoners to the U.S. mainland — even to face trials. This goes further than laws passed in 2009, when Congress specifically prevented the transfer of prisoners for any reason except to face a trial, and its political motivation can be seen from the wording of a bill passed by the House earlier this month — a $1.1 trillion appropriations bill — in which it was stated, “None of the funds made available in this or any prior Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions Khalid Sheikh Mohammed or any other detainee who (1) is not a United States citizen or a member of the Armed Forces of the United States; and (2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.”
That particular reference to Khalid Sheikh Mohammed was very deliberate, as the manifestation of a desire on the part of a significant number of lawmakers to prevent any prisoner from being brought to the U.S. mainland to face a trial was motivated by opposition to the plans, announced last November by Attorney General Eric Holder, to bring Mohammed, the alleged mastermind of the 9/11 attacks, and four alleged co-conspirators to New York to face a trial.
This decision has inflamed liberals, of course, but it has also brought forth trenchant criticism from Republicans as well. In an op-ed in the Wall Street Journal, for example, David B. Rivkin Jr. and Lee A. Casey, lawyers who served in the Justice Department under Ronald Reagan and George H.W. Bush, correctly identified the provision as unconstitutional.
Rivkin and Casey began unpromisingly, by stating, “Trying captured al-Qaeda, Taliban, or allied terrorists in United States civilian courts is a bad idea,” and then claimed that the “near-acquittal” of Ahmed Khalfan Ghailani, a former Guantánamo prisoner and CIA “ghost prisoner,” who was convicted in a federal court in New York last month for his involvement in the 1998 African embassy bombings, but only on one of the 285 charges he faced, “proves as much.” At this point, however, their analysis became much more interesting.
“But one bad idea does not excuse another,” they wrote, adding, “Congressional efforts to block future trials by imposing spending restrictions on the president are unconstitutional and should be abandoned.”
They also wrote:
The language forbids the use of government funds to transfer detainees now held at Guantánamo Bay to the United States for any and all purposes. Since federal courts sit only in U.S. territory and because criminal defendants must generally be physically within the court’s jurisdiction for trial, the apparent purpose of this provision is to prevent President Obama from trying these detainees in federal court.
This is a step too far. The president is the chief federal law enforcement officer and prosecutor. Whether, when and where to bring a particular prosecution lies at the very core of his constitutional power. Conditioning federal appropriations so as to force the president to exercise his prosecutorial discretion in accordance with Congress’s wishes rather than his own violates the Constitution’s separation of powers.
This is powerful criticism, and it applies equally to the two other provisions inserted into the bill by Congress.
The first of these bans the use of funds to purchase or construct any facility on the U.S. mainland for housing prisoners currently held at Guantánamo — and is, again, a direct response to the administration’s announcement, last December, that it intended to buy the empty Thomson Correctional Center in Illinois for that very purpose.
The second prevents the president from releasing any prisoner “unless Defence Secretary Robert M. Gates signs off on the safety of doing so,” as the New York Times described it. In earlier reports, it was noted that this provision was designed specifically to prevent the release of any prisoner to countries regarded by lawmakers as dangerous, including Afghanistan, Pakistan, and Yemen. Again, this is an unwarranted and unconstitutional assault on the president’s powers, although in this case it only reinforces what is already in existence.
In July, when a cleared Afghan prisoner was released in Spain, I was obliged to conclude that this had only happened because of congressional opposition to releasing him in his home country, although this has never been mentioned in any media reports. On Yemen, however, President Obama is already onside, and one of the major stumbling blocks to closing the prison is his decision, last January, to announce an open-ended oratorium on releasing any Yemeni prisoners — following hysteria about the fact that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, has been recruited in Yemen — even though this, like the newly announced congressional ban, amounts to guilt by nationality, and even though 58 of the 90 prisoners cleared for release by the Task Force are Yemenis.
The only point at which Congress appears to have stepped back from unconstitutional activities regarding Guantánamo concerns attempts to ban the release of prisoners whose release has been ordered by District Court judges who have granted their habeas corpus petitions. Last year, lawmakers passed a provision allowing them 15 days to review the cases of any prisoners that President Obama wanted to release, and last July, they aroused the wrath of Lt. Col. David Frakt, the military defence attorney for Mohamed Jawad, an Afghan who had just won his habeas petition, when they insisted on reviewing his case before his release. As 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 Mohamed 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.
He also explained:
It may be that, if the U.S. 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 U.S. 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.
Lawmakers have, presumably, taken Lt. Col. Frakt’s criticism on board, but unfortunately, when it comes to freeing prisoners whose release was ordered by judges after they won their habeas petitions, a further problem is the Obama administration itself.
Although judges in the District Court in Washington, D.C., have ruled on 57 habeas corpus petitions since the Supreme Court confirmed, in June 2008, that the prisoners had constitutionally guaranteed habeas rights, and have found in the prisoners’ favor in 38 of those cases, the administration has pushed back, appealing several successful petitions, and endorsing a broader definition of the standard required for ongoing detention, which has found support in the far more conservative D.C. Circuit Court.
This, combined with the evident unwillingness of either President Obama or Attorney General Eric Holder to provide any guidance to the Justice Department lawyers working on the Guantánamo cases — by, for example, conducting any kind of review of cases that should not be challenged in court — is worrying enough, but what is also apparent is that the Obama administration has, from the beginning, regarded the objectivity of the District Court judges as less important than the decisions made by the Guantánamo Review Task Force, which operated in secret, and, essentially, sidelined the courts.
Although this might have been excusable if the Task Force had contented itself with approving prisoners only for release or trial, the final report also contained a recommendation that 48 of the remaining 174 prisoners should continue to be held indefinitely without charge or trial, because “prosecution is not feasible in either federal court or a military commission.”
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 at the time: “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 returned to the habeas petitions examined by judges in the District Court in Washington D.C., 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 48 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.
Nevertheless, President Obama chose to accept the Task Force’s conclusions, and, last week, added to the unconstitutional position taken by Congress regarding cleared prisoners and prisoners recommended for trials, when officials told the Washington Post that they were close to finalizing an executive order that “would formalize indefinite detention without trial for some detainees at the U.S. military prison at Guantánamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration.”
Given the realities of the situation, a review process which “would allow detainees to challenge their incarceration periodically, possibly every year,” and to have legal representation, is better than indefinite detention without any review at all, and it is also possible to sympathize with the official who told the Post, “When the review panel puts someone in the category of long-term detention, the 48 people, what happens then?” Are they there for the rest of their lives? What’s the review mechanism? How impartial is it? Do they have a chance to contest it? All of that stuff has to be answered. And we have been working on an executive order laying out these elements.”
Nevertheless, looked at as part of the bigger picture, the proposal for the executive order is nothing to celebrate, and is actually only the lesser of two evils, because indefinite detention without charge or trial should never have been contemplated in the first place. Tom Malinowski, the head of the Washington office of Human Rights Watch, was right to tell the Post that there is “a ‘big difference’ between using an executive order, which can be rescinded, to handle a select group of detainees that Obama inherited, and legislating a general indefinite detention scheme,” but it is unacceptable that the administration has so thoroughly sidelined the judges of the District Court in Washington, D.C., who have been making their own decisions about whether prisoners should be held or released, Moreover, it is even more disappointing that the news of this imminent executive order — throwing the fate of 48 of the remaining prisoners on the mercy of an unspecified review process — came in the same week that 123 of the other 126 prisoners (all but the three held after trials by military commission) were told by Congress that their chances of being tried or released had pretty much evaporated.
As the ninth anniversary of the opening of Guantánamo approaches — and the first anniversary of Obama’s failed deadline for closing the prison — it is sobering indeed to realize that, far from closing Guantánamo and removing this lingering stain on America’s reputation, President Obama is now fulfilling one of Dick Cheney’s great hopes, presiding over a prison in which the overwhelming majority of the remaining 174 prisoners will, in all likelihood, continue to be held indefinitely.
It promises to be a bleak New Year.