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Civil Liberties Groups Oppose Obama’s Plan to Close Gitmo, Absent Serious Changes

Published on
by
The Washington Independent

Civil Liberties Groups Oppose Obama’s Plan to Close Gitmo, Absent Serious Changes

by
Spencer Ackerman

In an indication of the full-spectrum
pressure that the Obama administration is facing on its plan to close
Guantanamo Bay, today a coalition of major civil liberties groups — the
very groups that have led the charge to close the island detention
facility since its 2002 inception — sent a pained letter to Congress
urging members to oppose the planned closure unless President Obama
drastically modifies his approach.

The Pentagon is seeking about $350 million in its Afghanistan
funding authorization to buy the Thomson Correction Center in Illinois.
According
to a senior administration official who briefed reporters on the plan
to close Guantanamo in December
, the facility will house detainees
either convicted by military commissions or held in some form of
indefinite detention without charge. To civil libertarians, that would
entrench some of the most intolerable legal abuses of Guantanamo Bay in
the name of ending it, rendering the shutdown of the facility Pyrrhic
at best and misleading at worst. Sen. Mitch McConnell (R-Ky.), the
Senate GOP leader, no fan of closing Guantanamo, has questioned the
value of exporting Guantanamo practices to Illinois instead of ending
them outright.

In the new and delicately worded letter, eight civil libertarian
organizations come to the same reluctant conclusion, and urge
legislators to vote against the Thomson purchase unless they also pass a
“permanent, statutory ban on using the Thomson facility for indefinite
detention without charge or trial or for military commission-related
detention.” That would earn the blessing of a coalition that “strongly
support[s] the responsible closing of the Guantanamo Bay detention
facility” and takes pains to praise “many of the steps the Obama
Administration has taken” to close Guantanamo “the right way,” either
through “repatriation and resettling” of detainees or trying them
federal civilian court.

“Bringing the practice of indefinite detention without charge or
trial to any location within the United States will further harm the
rule of law and adherence to the Constitution,” reads a letter signed
by the Alliance for Justice, American Civil Liberties Union, Amnesty
International USA, Center for Constitutional Rights, Japanese American
Citizens League, National Association of Criminal Defense Lawyers,
Physicians for Human Rights, and the United Methodist Church’s General
Board of Church and Society. “The current statutory ban on transferring
detainees to the United States for purposes of indefinite detention
without charge or trial expires at the end of the current fiscal year.
Congress should not move forward with the Thomson purchase until and
unless it permanently prohibits indefinite detention and military
commission-related detention at the Thomson facility.”

The letter is the first concerted forceful statement of position to
Congress from civil libertarians who
have expressed months’ worth of discomfort with the contours of the
Thomson-based Guantanamo closure plan
— or what detractors call
“Gitmo North.” But it evidently did not win the support of other
prominent civil liberties groups like the Constitution Project, Human
Rights Watch and Human Rights First.

Here’s the full text:

TO: Members of the U.S. Senate
Members of the U.S. House of Representatives

FROM: Alliance for Justice
American Civil Liberties Union
Amnesty International USA
Center for Constitutional Rights
Japanese American Citizens League
National Association of Criminal Defense Lawyers
Physicians for Human Rights
United Methodist Church, General Board of Church and Society

DATE: April 8, 2010

RE: Opposition to the Purchase of the Thomson Correctional Center in
Thomson,

Illinois—Unless Congress Also Enacts a Permanent, Statutory Ban on
Using the Thomson Prison for Indefinitely Detaining Persons Without
Charge or Trial, or for Holding Persons During Military Commission
Trials or for Serving Sentences Imposed by Military Commissions

We urge you to oppose legislation authorizing, or appropriating
federal funds for, the purchase of the Thomson Correctional Center in
Thomson, Illinois, unless Congress, at the same time, also enacts a
permanent, statutory ban on using the Thomson prison for indefinitely
detaining persons without charge or trial, or for holding persons
during military commission trials or for serving sentences imposed by
military commissions. All of our organizations strongly support the
responsible closing of the Guantanamo Bay detention facility, and we
would support using the Thomson facility for holding any detainees now
at Guantanamo who may be charged, tried, or sentenced in federal
criminal court. However, we strongly oppose transporting the worst of
Guantanamo policies—indefinite detention without charge or trial and
military commissions—to a prison within the United States itself. If
used for one or both of these purposes, the purchase of the Thomson
prison could result in institutionalizing and perpetuating policies
that should instead end.

On December 15, 2009, President Obama signed a memorandum directing
the Attorney General and Secretary of Defense to acquire and activate
the Thomson prison for use by the Department of Defense in holding
detainees currently at the Guantanamo Bay Naval Base and by the
Department of Justice’s Bureau of Prisons as a federal penitentiary for
holding prisoners in high security, maximum security conditions.
According to a study by the Council of Economic Advisers last year, the
Defense Department would control 400 of the 1600 cells at the Thomson
prison. The Bureau of Prisons would control the remaining cells.

On December 15, a number of government officials provided further
details on who would be, and who would not be, held in the portion of
the Thomson prison designated for use by the Defense Department. In a
letter and accompanying questions and answers from the Deputy Secretary
of Defense to Congressman Mark Kirk, the Defense Department stated
that the Thomson prison would be used to imprison Guantanamo detainees
whom the government is indefinitely detaining without charge or trial
under a claim of detention authority based on the 2001 Authorization
for Use of Military Force, and also Guantanamo detainees tried before
military commissions or serving sentences imposed by military
commissions. However, the Deputy Secretary’s answer to Congressman
Kirk’s questions stated that Guantanamo detainees charged and tried
before federal criminal courts would not be housed at the Thomson
prison. Further, in a briefing by a “senior administration official” on
December 15, the official stated that Guantanamo detainees cleared for
release would remain at Guantanamo until transferred to other
countries, and would not go to Thomson.

There is a right way and a wrong way to close Guantanamo. To date,
many of the steps the Obama Administration has taken—with the support
of many members of Congress, including prominent congressional
supporters of the Thomson purchase–have been in the direction of
closing Guantanamo the right way. The Obama Administration has worked
hard to make charging decisions for detainees whom the government
believes should be prosecuted in federal criminal courts in the United
States, has closely collaborated with important allies of the United
States in repatriating and resettling detainees cleared for release,
and has continued the process of clearing detainees for release or
transfer. The Obama Administration should continue all of these steps
until the population at Guantanamo reaches zero.

However, there are two developments over the past year that
constitute closing Guantanamo the wrong way. First, the government has
reinstituted the discredited military commissions. The military
commissions have now gone through eight years, two statutes, four sets
of rules, but have only resulted in three convictions, with two of those
convicted detainees now released. By contrast, more than 400
defendants have been convicted of terrorism-related offense in federal
criminal courts. The military commissions still do not have any rules
based on the new statute, continue to have fundamental problems that
could result in their proceedings being held illegal under the
Constitution and international law, and deservedly lack credibility
both at home and abroad. Second, the government continues to claim
authority to indefinitely detain without charge or trial some of the
Guantanamo detainees. Even if there is legal authority to continue to
indefinitely detain these men, which many of our groups dispute, the
government should make the policy decision that the interests of the
United States are better served by either charging a detainee in
federal criminal court or repatriating or resettling the detainee.

Based on the government’s own statements, it appears that the
Defense Department-run portion of the Thomson prison would house only
those Guantanamo detainees being held pursuant to Guantanamo policies
that should end—namely, military commissions and indefinite detention
without charge or trial. Congress should not authorize, or appropriate
money for the acquisition of the Thomson prison unless it also enacts a
permanent statutory provision that would ensure that the Thomson
prison will not become a U.S.-based prison dedicated to perpetuating
Guantanamo policies that should end.

Bringing the practice of indefinite detention without charge or
trial to any location within the United States will further harm the
rule of law and adherence to the Constitution. Shortly after President
Obama took office, the government charged, tried, and convicted the
only person then-held on U.S. soil indefinitely without charge or
trial. At present, the number of people held within the U.S. itself
indefinitely without charge or trial is zero. However, if the Thomson
prison is acquired and the current statutory prohibition on
transferring Guantanamo detainees for purposes other than prosecution is
allowed to expire, the number of persons held on U.S. soil without
charge or trial could reportedly rise to 50 or more.

Moreover, Thomson could eventually become the place to send other
persons held indefinitely without charge or trial—with the prospect of
detainees being transferred there from Bagram, Afghanistan or new
captures brought from other locations around the globe. The unfortunate
reality that we would face if Thomson opens is that it is easier to go
from 50 to 51 indefinite detention prisoners than it is to go from 0
to 1. Once the indefinite detention policy is institutionalized at
Thomson, it will be difficult to hold the line at former Guantanamo
detainees.

We urge that you oppose the purchase of the Thomson prison unless
Congress, at the same time that it authorizes or funds the purchase,
also enacts a permanent, statutory ban on using the Thomson facility
for indefinite detention without charge or trial or for military
commission-related detention. The current statutory ban on transferring
detainees to the United States for purposes of indefinite detention
without charge or trial expires at the end of the current fiscal year.
Congress should not move forward with the Thomson purchase until and
unless it permanently prohibits indefinite detention and military
commission-related detention at the Thomson facility.

We would be very interested in meeting with you or your staff to
discuss this issue further.

Update, 1:06 p.m.: The Government Accountability Project is a
last-minute signatory, bringing the total number of groups signing the
letter to nine.

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