Tomgram: Karen Greenberg, No Justice at Gitmo
By Karen J. Greenberg
Posted on April 19, 2016, Printed on April 22, 2016
http://www.tomdispatch.com/blog/176130/ ;
With only nine months to go, in the fashion of modern presidents, Barack
Obama is already planning his post-presidential library, museum, and
foundation complex. Such institutions only seem to grow more opulent and
imperial as the years and administrations pass. Obamas will reportedly
leave the $300 million raised for George W. Bushs version of the same in
the dust. The aim is to create at least an $800 million and possibly
billion-dollar institution. With his post-Oval Office future already in
view and his presidency nearly history, his legacy has clearly been on his
mind of late. And when it comes to foreign policy, he definitely has some
accomplishments to brag about. The two most obvious are the Iran nuclear
deal and the opening to Cuba. In their own ways, both could prove game
changers, breaking with venomous relations that lasted, in the case of Iran,
for more than three and a half decades, and in the case of Cuba, for more
than half a century.
You can already imagine the exhibits celebrating them at the Barack Obama
Presidential Center to be built on the south side of Chicago. But it's hard
not to wonder how that institution will handle the three major foreign
policy promises the new president made in the distant days of 2008-2009.
After all, he was, in part, swept into the presidency on a blunt promise to
end George W. Bushs catastrophic war in Iraq. (So when I am
Commander-in-Chief, I will set a new goal on Day One: I will end this war.)
Nine years later, hes once again taken this country into the Big Muddy of
an Iraq War, either the third or fourth of them in the last five
presidencies (depending on whether you count the Reagan administration
support for Saddam Husseins war with Iran in the 1980s). At this moment,
having just dispatched B-52s, the classic Vietnam-era carpet-bombing plane
of choice (Ted Cruz must be thrilled!) to Qatar as part of that war effort,
and being on a mission-creep path ever deeper into what can only be called
the Iraq quagmire, we're likely to be talking about a future museum exhibit
from hell.
But it wont begin to match the special exhibit that will someday
undoubtedly explore the presidents heartfelt promise to work to severely
curtail the American and global nuclear arsenals and put the planet on a
path to -- a word that had never previously hovered anywhere near the Oval
Office -- nuclear abolition. The presidents disarmament ambitions were, in
fact, significantly responsible for his 2009 Nobel Prize, an honor that
almost uniquely preceded any accomplishments. Now, the same man is
presiding over a planned three-decade, trillion-dollar renovation and
modernization of that same arsenal, including the development of an initial
generation of smart nukes, potentially first-use weapons. Its certainly
been a unique path for our first outright anti-nuclear president to take and
deserves a special place of (dis)honor at the future Obama center.
Barring surprising developments in the coming months, however, no exhibit is
likely to be more striking or convoluted than the one that will have to be
dedicated to the "closing" of Guantánamo, the notorious offshore, Bush-era
prison camp. After all, as TomDispatch regular Karen Greenberg, author of
Rogue Justice: The Making of the Security State, a striking
soon-to-be-published anatomy of post-9/11 national security state mania,
points out today, the closing of Guantánamo within a year represented one of
the presidents first promises on entering the Oval Office. Unless somehow
he succeeds in shutting Gitmo down over fierce Republican congressional
opposition in these final months, it could prove the pièce de résistance of
his future museum. Tom
Still in the Bush Embrace
What Really Stands in the Way of Closing Guantánamo
By Karen J. Greenberg
Can you believe it? Were in the last year of the presidency of the man
who, on his first day in the Oval Office, swore that he would close
Guantánamo, and yet it and everything it represents remains part of our
all-American world. So many years later, you can still read news reports on
the ongoing nightmares of that grim prison, ranging from detention without
charge to hunger strikes and force feeding. Its name still echoes through
the halls of Congress in bitter debate over what should or shouldnt be done
with it. It remains a global symbol of the worst America has to offer.
In case, despite the odds, it should be closed in this presidency, Donald
Trump has already sworn to reopen it and load it up with bad dudes, while
Ted Cruz has warned against returning the naval base on which its located
to the Cubans. In short, that prison continues to haunt us like an evil
spirit. While President Obama remains intent on closing it, he continues to
make the most modest and belated headway in reducing its prisoner
population, while a Republican Congress remains no less determined to keep
it open. With nine months left until a new president is inaugurated, the
question is: Can this countrys signature War on Terror prison ever be
closed?
The Forever Detainees
Here then is a little dismal history of a place most Americans would prefer
not even to think about.
In January 2002, President George W. Bush opened the Guantánamo Bay
Detention facility. It was to hold, in Secretary of Defense Donald
Rumsfelds phrase, the worst of the worst in the War on Terror. Over time,
its population rose to nearly 800 prisoners from 44 countries, some captured
in Afghanistan, some traded for bounty payments by vindictive neighbors or
hostile tribesmen, and some seized by CIA operatives in countries far from
Taliban territory. The prison then held more al-Qaeda and Taliban followers
than leaders, but many prisoners were neither: they had simply been in the
wrong place at the wrong time. Recognizing this, within a few years the Bush
administration sent more than 500 of the detainees back to their countries
of origin or to other countries willing to accept them.
Then, in 2006, Bush made the lie of Guantánamo a reality. His administration
finally transferred the worst of the worst to the by-then-notorious island
prison. Those 16 individuals included five who stood accused of
participating in the 9/11 conspiracy, and others who were believed
responsible for devastatingly lethal attacks against American targets in the
1990s, including the American Embassies in Kenya and Tanzania in 1998 and
the USS Cole in the Yemeni port of Aden in 2000. All had been held for years
in CIA custody in black sites in countries around the world. All had been
subjected to enhanced interrogation techniques, which was, of course, the
administration's (and, in those years, the media's) euphemism for some of
the oldest torture practices known.
That move would prove a game changer. Instead of Guantánamos population
shrinking into irrelevance and dwindling into obscurity, as it should have,
the prison for the first time became exactly what Rumsfeld had promised it
would be: a place for the most notorious al-Qaeda high value detainees
(HVDs) that the U.S. held. Khalid Sheikh Mohammed, the mastermind of 9/11,
and four others allegedly involved in planning or carrying out the attacks
on New York and Washington were among them.
That same fall, Congress passed the Military Commissions Act aimed at
assuring that Guantánamo would be a site not only for offshore detention,
but for offshore justice as well. At some future point, Mohammed and the
others were to be tried by the U.S. military in Cuba, not in American
civilian courts in the U.S. For the first time, the military commissions,
like the high value detainees, seemed to give Guantánamo definition (other
than simply as a site of abuse, mistreatment, and injustice) and the
possibility, in the context of the war on terror, of forward momentum. Those
not released could now be tried. And yet by the end of the Bush years, only
three prisoners, none of them HVDs, had been successfully convicted --
fewer, in other words, than the five who died in custody there in those
years.
That should have been revealing enough for conclusions to be drawn. It
turned out that even a secretive, militarized, legally compromised system of
justice couldnt successfully bring to trial individuals involved in the
crime that launched the new century, when the major evidence against them
often came from brutal forms of torture. As a result, most of the Guantánamo
detainees had settled into a familiar state of limbo by the time Barack
Obama took office in January 2009. At the time, 242 detainees were still in
custody there and those military trials were going nowhere fast. The new
president arrived on a white horse, full of promises about ending the stasis
at Guantánamo and ready to make sense of things. He promptly promised to
close the prison for good and suspended the military commissions.
That left the problem of somehow resolving the unsettled status of the
various detainees then in custody at Gitmo, individuals who essentially fell
into three categories: those deemed not to pose a danger to the U.S. who
were to be released; those considered too dangerous for release but --
thanks to tortured testimony -- not prosecutable even in military courts and
were to be kept in indefinite detention (a group Miami Herald reporter Carol
Rosenberg aptly termed forever prisoners); and those who would someday be
tried by some version of the suspended military commissions.
By the summer of his first year in office, Obama had announced that he would
accept the distinctly un-American reality of indefinite detention and the
military commissions as well, although in a new form still to be legislated
by Congress. From then on, his presidency would remain eerily locked in the
embrace of the Bush administration on Guantánamo and, promises or no, one
thing was quickly clear: the president was not about to go out on a limb for
the Gitmo detainees; he had other things to tend to (like a health-care
proposal). Meanwhile, a task force appointed by the president determined
that 48 detainees should indeed be kept in indefinite detention, 36
prosecuted, and the rest released via transfers to other countries.
Shrinking Gitmo
Given his promises, it was not exactly a record to feel proud of, but in his
seven years in office, President Obama has at least made some headway in
terms of the sheer size of the Gitmo population. Admittedly, the pace of
releases has been abysmally slow. Dozens of prisoners have been declared no
longer dangerous and yet left to languish in their cells. Meanwhile,
diplomatic negotiations for their resettlement in countries neither so
fragile that terrorism is a daily reality, nor likely to abuse them further
dragged on (while congressional Republicans continue to fight on tooth and
nail to keep them in place). Still, today there are only 80 remaining
detainees, a third of the population in January 2009. Twenty-six of those
have been cleared for release but are still awaiting transfer years later,
while 44 continue to be held without charges in indefinite detention. Nine
face actual charges before the military commissions.
Whatever the reduction in numbers, however, the camp stands essentially as
it did under Bush, a monument to bad memories. It still has dozens of
individuals locked away in a grim state of hopelessness, some cleared for
release but doubting their transfers will ever occur, others having given up
entirely and on hunger strikes -- essentially trying to commit suicide.
Theoretically, the pace of resettlement for those already cleared for
release could be speeded up and the Periodic Review Board, charged with
deciding if an individual no longer poses a danger to this country, could
meet more frequently to agree on releases among the relatively small number
of detainees whose futures are still undetermined. Were that to happen (and
it might), within months the population of Gitmo could be reduced to a
relatively few detainees.
Its worth noting that U.S. taxpayers continue to ante up a pretty penny to
maintain Gitmo and its shrinking group of inmates in its present state. The
cost to keep a detainee there in 2015 is estimated at between $3.7 million
and $4.2 million a year. Were that population to be reduced significantly,
those millions of dollars per detainee would only skyrocket up. The smaller
the number remaining there and the higher the cost per head, the more likely
that even a reluctant Congress might eventually agree to move them to the
U.S., although closing Guantánamo will then mean bringing Gitmo practices
-- indefinite detention without charges, the most fundamental violation of
due process imaginable -- to the mainland.
Regressive Justice
That would leave one thing and one thing alone standing in the way of
Guantánamos official end: the military commissions, and that would indeed
be ironic. After all, unlike indefinite detention or torture, those
commissions are a recognizable, if flawed, part of the American legal
tradition, used during both the Civil War and the Second World War.
They have been marked by failure from the outset. The commissions were not
initially on the minds of the Bush administration lawyers and officials who
organized the war on terror, set up that Cuban outpost, and enhanced those
classic torture techniques. In fact, offshore detention was meant to skirt
the U.S. justice system almost entirely and get information from the
captured men by any means necessary. The goal was clear enough: to fill in
for the unfortunate lack of knowledge American intelligence services had
about Osama bin Laden, the al-Qaeda network, their hideouts and training
camps.
To give themselves leeway in terms of prisoner interrogation and treatment,
the administration refused to consider those held there as prisoners of war
(POWs), for fear that methods of interrogation would be restricted by the
Geneva Conventions. Instead, they coined a term, enemy combatants, to
create a category beyond the bounds of legality. To this day, U.S. officials
speak of the remaining detainees at Gitmo as neither prisoners nor POWs.
Soon after the prison was set up, the Bush administration referred 24 of
those enemy combatants to an ad hoc process which they began to call
military commissions -- until, in June 2006, the Supreme Court declared
them invalid unless authorized by Congress (which then dutifully and hastily
passed the Military Commissions Act of 2006).
All these years later, only eight prisoners have been convicted under the
commissions that were suspended and then revived by Obama. Three of them,
convicted before he took office, have since had their charges vacated or
overturned. Put another way, you could say that the commissions are
regressing in their goal to clear Gitmos cases. Once able to claim eight
convictions, they can now count only five, and in the months to come,
depending on a future decision by the U.S. Court of Appeals in Washington,
that number may be reduced further. In sum, the commissions have shown not
the slightest progress when it comes to the mission of closing Gitmo.
There are, of course, federal courts in the U.S. with much experience in
trying terror cases and a 100% conviction rate when it comes to major ones.
To give Obama administration officials some credit, they did initially want
to dump the military commissions for trials on the mainland and even moved
one high value detainee, Ahmed Ghailani, to the federal courthouse in New
York City. While his trial did result in a jury conviction on a single
charge and a sentence of life without parole, the trial itself was seen by
those who prefer to keep Gitmo open as proof that terrorists do stand a
chance of going free in federal courts. Much of the evidence against
Ghailani, tainted by torture, was excluded from the trial. While the jury
knew neither about his torture nor the fact that he had been held at
Guantánamo, Ghailani was acquitted on 283 of 284 counts. In a situation in
which the phrase courage of your convictions would never be brought to
bear, President Obama and Attorney General Eric Holder backed down amid a
torrent of criticism, and the military commissions continued at Guantánamo.
And yet for anyone hoping to see that prison closed in our lifetimes, sooner
or later the idea of transferring those formally charged with terrorism to
the federal courts will have to be revived. The place of choice, were this
to happen, should probably be a courthouse relatively close to the White
House: the Eastern District Court of Virginia (EDVA). It has, since 9/11,
overseen a variety of high-profile terror cases, including those of Zacarias
Moussaoui, John Walker Lindh, and Abu Ali.
It is also an inside-the-Beltway courthouse; its judges and prosecutors are
familiar with using intelligence-related classified information. It is near
the Department of Justice and can call on the expertise of officials at the
FBI, CIA, and elsewhere who have been working on these cases for years.
Finally, it has earned a reputation as the rocket docket, a fast-paced
venue that tries such cases with speed -- and given how long these trials
have been postponed, speed is an important consideration.
Closing Gitmo?
There are a variety of ways that the EDVA could receive cases from the
military commissions, ranging from a presidential act in defiance of a
Congressional ban on transferring any Gitmo prisoners to the U.S. to actual
congressional authorization. There is, however, one man who could make all
of this far more likely and thats Brigadier General Mark Martins, the chief
prosecutor of the Office of Military Commissions since 2011. With soldierly
loyalty, a sharp legal mind, and a charismatic public demeanor, Martins has
for six long years defended the ability of the Guantánamo commissions to
succeed as constitutionally and legally valid courts with built-in
protections and procedures that approach those of federal criminal courts.
He has the power to declare the commissions no longer viable, leaving the
administration with little choice but to close them. Were he to do so, it
would be a game-changer.
A former adviser to General David Petraeus in Iraq and Afghanistan and
co-chair of the task force that revived the commissions after Obama came
into office, he has suffered one setback after another. In these years, he
has been blindsided by the CIAs attempts to spy on the commissions Gitmo
courtroom, as well as on the rooms where attorneys meet the defendants they
represent. Hes been stopped in his tracks by federal courts that declared
the main charges against the detainees he was trying unlawful; embarrassed
by the mysterious transfer of defense counsel materials to the prosecutions
computers; and humiliated, month after month, by the failure to deliver on
the promise he made that the commissions procedures in their fundamental
guarantees of a fair and just trial would be comparable to trials in
federal courts." Those procedures have instead proven to be a farce.
Were General Martins to finally accept the reality of Gitmo -- that, given
its history, nothing there can truly resemble justice -- he might be able to
lead even a recalcitrant Republican Congress, the administration in its last
days, and the American public to the only realistic conclusion: that the
military commissions will never work and its finally time to shut Gitmo
down. After all, it is hard to imagine any system that would do worse than
the one that, for a decade, has failed even to begin the trials of the men
charged as perpetrators of 9/11.
Those attacks left an open wound that will not heal, not without actual
justice. For the sake of the victims families, for the ability of the
country to move on, for the very confidence of the nation in its judicial
system, those defendants need to be tried and Guantánamo has proven itself
incapable of doing so.
Still, all of us have to face another possibility: that the prison will not
be closed in whats left of the Obama years or in the presidency to follow;
that this country will instead be left in the twilight zone of Gitmo and in
a world where its values are the ones eternally associated with America; and
that we will continue to be known as a nation willing to avoid justice, if
not deny it outright. Even at this late date, closing Gitmo and moving the
military commission trials back to federal court would help heal the wound
that the war on terror inflicted on the countrys deepest identity -- as a
nation of justice for all.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on
National Security at Fordham Law School and author of The Least Worst Place:
Guantánamos First 100 Days. Her latest book, Rogue Justice: The Making of
the Security State (Crown Publishers), will be published in May. Andrew
Dalack, a research fellow at the Center on National Security, helped with
this article.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest
Dispatch Book, Nick Turses Tomorrows Battlefield: U.S. Proxy Wars and
Secret Ops in Africa, and Tom Engelhardt's latest book, Shadow Government:
Surveillance, Secret Wars, and a Global Security State in a
Single-Superpower World.
Copyright 2016 Karen J. Greenberg
© 2016 TomDispatch. All rights reserved.
View this story online at: http://www.tomdispatch.com/blog/176130
Tomgram: Karen Greenberg, No Justice at Gitmo
By Karen J. Greenberg
Posted on April 19, 2016, Printed on April 22, 2016
http://www.tomdispatch.com/blog/176130/ ;
With only nine months to go, in the fashion of modern presidents, Barack
Obama is already planning his post-presidential library, museum, and
foundation complex. Such institutions only seem to grow more opulent and
imperial as the years and administrations pass. Obamas will reportedly
leave the $300 million raised for George W. Bushs version of the same in
the dust. The aim is to create at least an $800 million and possibly
billion-dollar institution. With his post-Oval Office future already in view
and his presidency nearly history, his legacy has clearly been on his mind
of late. And when it comes to foreign policy, he definitely has some
accomplishments to brag about. The two most obvious are the Iran nuclear
deal and the opening to Cuba. In their own ways, both could prove game
changers, breaking with venomous relations that lasted, in the case of Iran,
for more than three and a half decades, and in the case of Cuba, for more
than half a century.
You can already imagine the exhibits celebrating them at the Barack Obama
Presidential Center to be built on the south side of Chicago. But it's hard
not to wonder how that institution will handle the three major foreign
policy promises the new president made in the distant days of 2008-2009.
After all, he was, in part, swept into the presidency on a blunt promise to
end George W. Bushs catastrophic war in Iraq. (So when I am
Commander-in-Chief, I will set a new goal on Day One: I will end this war.)
Nine years later, hes once again taken this country into the Big Muddy of
an Iraq War, either the third or fourth of them in the last five
presidencies (depending on whether you count the Reagan administration
support for Saddam Husseins war with Iran in the 1980s). At this moment,
having just dispatched B-52s, the classic Vietnam-era carpet-bombing plane
of choice (Ted Cruz must be thrilled!) to Qatar as part of that war effort,
and being on a mission-creep path ever deeper into what can only be called
the Iraq quagmire, we're likely to be talking about a future museum exhibit
from hell.
But it wont begin to match the special exhibit that will someday
undoubtedly explore the presidents heartfelt promise to work to severely
curtail the American and global nuclear arsenals and put the planet on a
path to -- a word that had never previously hovered anywhere near the Oval
Office -- nuclear abolition. The presidents disarmament ambitions were, in
fact, significantly responsible for his 2009 Nobel Prize, an honor that
almost uniquely preceded any accomplishments. Now, the same man is presiding
over a planned three-decade, trillion-dollar renovation and modernization of
that same arsenal, including the development of an initial generation of
smart nukes, potentially first-use weapons. Its certainly been a unique
path for our first outright anti-nuclear president to take and deserves a
special place of (dis)honor at the future Obama center.
Barring surprising developments in the coming months, however, no exhibit is
likely to be more striking or convoluted than the one that will have to be
dedicated to the "closing" of Guantánamo, the notorious offshore, Bush-era
prison camp. After all, as TomDispatch regular Karen Greenberg, author of
Rogue Justice: The Making of the Security State, a striking
soon-to-be-published anatomy of post-9/11 national security state mania,
points out today, the closing of Guantánamo within a year represented one of
the presidents first promises on entering the Oval Office. Unless somehow
he succeeds in shutting Gitmo down over fierce Republican congressional
opposition in these final months, it could prove the pièce de résistance of
his future museum. Tom
Still in the Bush Embrace
What Really Stands in the Way of Closing Guantánamo
By Karen J. Greenberg
Can you believe it? Were in the last year of the presidency of the man who,
on his first day in the Oval Office, swore that he would close Guantánamo,
and yet it and everything it represents remains part of our all-American
world. So many years later, you can still read news reports on the ongoing
nightmares of that grim prison, ranging from detention without charge to
hunger strikes and force feeding. Its name still echoes through the halls of
Congress in bitter debate over what should or shouldnt be done with it. It
remains a global symbol of the worst America has to offer.
In case, despite the odds, it should be closed in this presidency, Donald
Trump has already sworn to reopen it and load it up with bad dudes, while
Ted Cruz has warned against returning the naval base on which its located
to the Cubans. In short, that prison continues to haunt us like an evil
spirit. While President Obama remains intent on closing it, he continues to
make the most modest and belated headway in reducing its prisoner
population, while a Republican Congress remains no less determined to keep
it open. With nine months left until a new president is inaugurated, the
question is: Can this countrys signature War on Terror prison ever be
closed?
The Forever Detainees
Here then is a little dismal history of a place most Americans would prefer
not even to think about.
In January 2002, President George W. Bush opened the Guantánamo Bay
Detention facility. It was to hold, in Secretary of Defense Donald
Rumsfelds phrase, the worst of the worst in the War on Terror. Over time,
its population rose to nearly 800 prisoners from 44 countries, some captured
in Afghanistan, some traded for bounty payments by vindictive neighbors or
hostile tribesmen, and some seized by CIA operatives in countries far from
Taliban territory. The prison then held more al-Qaeda and Taliban followers
than leaders, but many prisoners were neither: they had simply been in the
wrong place at the wrong time. Recognizing this, within a few years the Bush
administration sent more than 500 of the detainees back to their countries
of origin or to other countries willing to accept them.
Then, in 2006, Bush made the lie of Guantánamo a reality. His administration
finally transferred the worst of the worst to the by-then-notorious island
prison. Those 16 individuals included five who stood accused of
participating in the 9/11 conspiracy, and others who were believed
responsible for devastatingly lethal attacks against American targets in the
1990s, including the American Embassies in Kenya and Tanzania in 1998 and
the USS Cole in the Yemeni port of Aden in 2000. All had been held for years
in CIA custody in black sites in countries around the world. All had been
subjected to enhanced interrogation techniques, which was, of course, the
administration's (and, in those years, the media's) euphemism for some of
the oldest torture practices known.
That move would prove a game changer. Instead of Guantánamos population
shrinking into irrelevance and dwindling into obscurity, as it should have,
the prison for the first time became exactly what Rumsfeld had promised it
would be: a place for the most notorious al-Qaeda high value detainees
(HVDs) that the U.S. held. Khalid Sheikh Mohammed, the mastermind of 9/11,
and four others allegedly involved in planning or carrying out the attacks
on New York and Washington were among them.
That same fall, Congress passed the Military Commissions Act aimed at
assuring that Guantánamo would be a site not only for offshore detention,
but for offshore justice as well. At some future point, Mohammed and the
others were to be tried by the U.S. military in Cuba, not in American
civilian courts in the U.S. For the first time, the military commissions,
like the high value detainees, seemed to give Guantánamo definition (other
than simply as a site of abuse, mistreatment, and injustice) and the
possibility, in the context of the war on terror, of forward momentum. Those
not released could now be tried. And yet by the end of the Bush years, only
three prisoners, none of them HVDs, had been successfully convicted --
fewer, in other words, than the five who died in custody there in those
years.
That should have been revealing enough for conclusions to be drawn. It
turned out that even a secretive, militarized, legally compromised system of
justice couldnt successfully bring to trial individuals involved in the
crime that launched the new century, when the major evidence against them
often came from brutal forms of torture. As a result, most of the Guantánamo
detainees had settled into a familiar state of limbo by the time Barack
Obama took office in January 2009. At the time, 242 detainees were still in
custody there and those military trials were going nowhere fast. The new
president arrived on a white horse, full of promises about ending the stasis
at Guantánamo and ready to make sense of things. He promptly promised to
close the prison for good and suspended the military commissions.
That left the problem of somehow resolving the unsettled status of the
various detainees then in custody at Gitmo, individuals who essentially fell
into three categories: those deemed not to pose a danger to the U.S. who
were to be released; those considered too dangerous for release but --
thanks to tortured testimony -- not prosecutable even in military courts and
were to be kept in indefinite detention (a group Miami Herald reporter Carol
Rosenberg aptly termed forever prisoners); and those who would someday be
tried by some version of the suspended military commissions.
By the summer of his first year in office, Obama had announced that he would
accept the distinctly un-American reality of indefinite detention and the
military commissions as well, although in a new form still to be legislated
by Congress. From then on, his presidency would remain eerily locked in the
embrace of the Bush administration on Guantánamo and, promises or no, one
thing was quickly clear: the president was not about to go out on a limb for
the Gitmo detainees; he had other things to tend to (like a health-care
proposal). Meanwhile, a task force appointed by the president determined
that 48 detainees should indeed be kept in indefinite detention, 36
prosecuted, and the rest released via transfers to other countries.
Shrinking Gitmo
Given his promises, it was not exactly a record to feel proud of, but in his
seven years in office, President Obama has at least made some headway in
terms of the sheer size of the Gitmo population. Admittedly, the pace of
releases has been abysmally slow. Dozens of prisoners have been declared no
longer dangerous and yet left to languish in their cells. Meanwhile,
diplomatic negotiations for their resettlement in countries neither so
fragile that terrorism is a daily reality, nor likely to abuse them further
dragged on (while congressional Republicans continue to fight on tooth and
nail to keep them in place). Still, today there are only 80 remaining
detainees, a third of the population in January 2009. Twenty-six of those
have been cleared for release but are still awaiting transfer years later,
while 44 continue to be held without charges in indefinite detention. Nine
face actual charges before the military commissions.
http://www.amazon.com/dp/0804138214/ref=nosim/?tag=tomdispatch-20
http://www.amazon.com/dp/0804138214/ref=nosim/?tag=tomdispatch-20Whatever
the reduction in numbers, however, the camp stands essentially as it did
under Bush, a monument to bad memories. It still has dozens of individuals
locked away in a grim state of hopelessness, some cleared for release but
doubting their transfers will ever occur, others having given up entirely
and on hunger strikes -- essentially trying to commit suicide.
Theoretically, the pace of resettlement for those already cleared for
release could be speeded up and the Periodic Review Board, charged with
deciding if an individual no longer poses a danger to this country, could
meet more frequently to agree on releases among the relatively small number
of detainees whose futures are still undetermined. Were that to happen (and
it might), within months the population of Gitmo could be reduced to a
relatively few detainees.
Its worth noting that U.S. taxpayers continue to ante up a pretty penny to
maintain Gitmo and its shrinking group of inmates in its present state. The
cost to keep a detainee there in 2015 is estimated at between $3.7 million
and $4.2 million a year. Were that population to be reduced significantly,
those millions of dollars per detainee would only skyrocket up. The smaller
the number remaining there and the higher the cost per head, the more likely
that even a reluctant Congress might eventually agree to move them to the
U.S., although closing Guantánamo will then mean bringing Gitmo practices
-- indefinite detention without charges, the most fundamental violation of
due process imaginable -- to the mainland.
Regressive Justice
That would leave one thing and one thing alone standing in the way of
Guantánamos official end: the military commissions, and that would indeed
be ironic. After all, unlike indefinite detention or torture, those
commissions are a recognizable, if flawed, part of the American legal
tradition, used during both the Civil War and the Second World War.
They have been marked by failure from the outset. The commissions were not
initially on the minds of the Bush administration lawyers and officials who
organized the war on terror, set up that Cuban outpost, and enhanced those
classic torture techniques. In fact, offshore detention was meant to skirt
the U.S. justice system almost entirely and get information from the
captured men by any means necessary. The goal was clear enough: to fill in
for the unfortunate lack of knowledge American intelligence services had
about Osama bin Laden, the al-Qaeda network, their hideouts and training
camps.
To give themselves leeway in terms of prisoner interrogation and treatment,
the administration refused to consider those held there as prisoners of war
(POWs), for fear that methods of interrogation would be restricted by the
Geneva Conventions. Instead, they coined a term, enemy combatants, to
create a category beyond the bounds of legality. To this day, U.S. officials
speak of the remaining detainees at Gitmo as neither prisoners nor POWs.
Soon after the prison was set up, the Bush administration referred 24 of
those enemy combatants to an ad hoc process which they began to call
military commissions -- until, in June 2006, the Supreme Court declared
them invalid unless authorized by Congress (which then dutifully and hastily
passed the Military Commissions Act of 2006).
All these years later, only eight prisoners have been convicted under the
commissions that were suspended and then revived by Obama. Three of them,
convicted before he took office, have since had their charges vacated or
overturned. Put another way, you could say that the commissions are
regressing in their goal to clear Gitmos cases. Once able to claim eight
convictions, they can now count only five, and in the months to come,
depending on a future decision by the U.S. Court of Appeals in Washington,
that number may be reduced further. In sum, the commissions have shown not
the slightest progress when it comes to the mission of closing Gitmo.
There are, of course, federal courts in the U.S. with much experience in
trying terror cases and a 100% conviction rate when it comes to major ones.
To give Obama administration officials some credit, they did initially want
to dump the military commissions for trials on the mainland and even moved
one high value detainee, Ahmed Ghailani, to the federal courthouse in New
York City. While his trial did result in a jury conviction on a single
charge and a sentence of life without parole, the trial itself was seen by
those who prefer to keep Gitmo open as proof that terrorists do stand a
chance of going free in federal courts. Much of the evidence against
Ghailani, tainted by torture, was excluded from the trial. While the jury
knew neither about his torture nor the fact that he had been held at
Guantánamo, Ghailani was acquitted on 283 of 284 counts. In a situation in
which the phrase courage of your convictions would never be brought to
bear, President Obama and Attorney General Eric Holder backed down amid a
torrent of criticism, and the military commissions continued at Guantánamo.
And yet for anyone hoping to see that prison closed in our lifetimes, sooner
or later the idea of transferring those formally charged with terrorism to
the federal courts will have to be revived. The place of choice, were this
to happen, should probably be a courthouse relatively close to the White
House: the Eastern District Court of Virginia (EDVA). It has, since 9/11,
overseen a variety of high-profile terror cases, including those of Zacarias
Moussaoui, John Walker Lindh, and Abu Ali.
It is also an inside-the-Beltway courthouse; its judges and prosecutors are
familiar with using intelligence-related classified information. It is near
the Department of Justice and can call on the expertise of officials at the
FBI, CIA, and elsewhere who have been working on these cases for years.
Finally, it has earned a reputation as the rocket docket, a fast-paced
venue that tries such cases with speed -- and given how long these trials
have been postponed, speed is an important consideration.
Closing Gitmo?
There are a variety of ways that the EDVA could receive cases from the
military commissions, ranging from a presidential act in defiance of a
Congressional ban on transferring any Gitmo prisoners to the U.S. to actual
congressional authorization. There is, however, one man who could make all
of this far more likely and thats Brigadier General Mark Martins, the chief
prosecutor of the Office of Military Commissions since 2011. With soldierly
loyalty, a sharp legal mind, and a charismatic public demeanor, Martins has
for six long years defended the ability of the Guantánamo commissions to
succeed as constitutionally and legally valid courts with built-in
protections and procedures that approach those of federal criminal courts.
He has the power to declare the commissions no longer viable, leaving the
administration with little choice but to close them. Were he to do so, it
would be a game-changer.
A former adviser to General David Petraeus in Iraq and Afghanistan and
co-chair of the task force that revived the commissions after Obama came
into office, he has suffered one setback after another. In these years, he
has been blindsided by the CIAs attempts to spy on the commissions Gitmo
courtroom, as well as on the rooms where attorneys meet the defendants they
represent. Hes been stopped in his tracks by federal courts that declared
the main charges against the detainees he was trying unlawful; embarrassed
by the mysterious transfer of defense counsel materials to the prosecutions
computers; and humiliated, month after month, by the failure to deliver on
the promise he made that the commissions procedures in their fundamental
guarantees of a fair and just trial would be comparable to trials in
federal courts." Those procedures have instead proven to be a farce.
Were General Martins to finally accept the reality of Gitmo -- that, given
its history, nothing there can truly resemble justice -- he might be able to
lead even a recalcitrant Republican Congress, the administration in its last
days, and the American public to the only realistic conclusion: that the
military commissions will never work and its finally time to shut Gitmo
down. After all, it is hard to imagine any system that would do worse than
the one that, for a decade, has failed even to begin the trials of the men
charged as perpetrators of 9/11.
Those attacks left an open wound that will not heal, not without actual
justice. For the sake of the victims families, for the ability of the
country to move on, for the very confidence of the nation in its judicial
system, those defendants need to be tried and Guantánamo has proven itself
incapable of doing so.
Still, all of us have to face another possibility: that the prison will not
be closed in whats left of the Obama years or in the presidency to follow;
that this country will instead be left in the twilight zone of Gitmo and in
a world where its values are the ones eternally associated with America; and
that we will continue to be known as a nation willing to avoid justice, if
not deny it outright. Even at this late date, closing Gitmo and moving the
military commission trials back to federal court would help heal the wound
that the war on terror inflicted on the countrys deepest identity -- as a
nation of justice for all.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on
National Security at Fordham Law School and author of The Least Worst Place:
Guantánamos First 100 Days. Her latest book, Rogue Justice: The Making of
the Security State (Crown Publishers), will be published in May. Andrew
Dalack, a research fellow at the Center on National Security, helped with
this article.
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Copyright 2016 Karen J. Greenberg
© 2016 TomDispatch. All rights reserved.
View this story online at: http://www.tomdispatch.com/blog/176130
