Losing the Moral High Ground

by Frida Berrigan

As the eighth anniversary of the launch of Operation Enduring Freedom in Afghanistan approaches, the spotlight is on the Obama administration's evolving war strategy in a nation long known as the "graveyard of empires."

The current discourse on what is now dubbed "Obama's War" focuses on the number and composition of troops, as well as the overarching strategy (counter-insurgency, rapid withdrawal, a mix of military and reconstruction operations).

But we should not lose sight of another consequence of the October 7, 2001 invasion: the detention of thousands of people suspected of being hostile to the United States. They remain held at prisons at Guantánamo, Bagram Air Field, and elsewhere. They have now become Obama's enemy combatants.

Closing Gitmo

"I think we lost the moral high ground," concludes Marine Brigadier General Michael Lehnert (Ret.), once tasked with setting up the detention camps at the Guantánamo Bay U.S. Naval Base, where more than 200 prisoners remain. "I think we should close it down. I think the information we're getting is not worth the international beating we're taking."

President Barack Obama came into office promising to do just that. Less than 24 hours after his inauguration in January 2009, he signed an executive order requiring the "closure of the Guantanamo detention center no later than one year from the date of the Order."

At the time, the act — along with a ban on "enhanced interrogations" — seemed like Obama's decisive break with the moribund policies of the Bush White House. But the deadline for Guantanamo's closure, less than four months away, almost certainly will be missed. And on so many vital issues, the Obama administration has not broken with the past but instead has upheld Bush's legacy of legal loopholing, moral doublespeak, and crude vengeance. 

With the nation stricken and scared from the September 11 attacks, the Bush administration tapped lawyers to twist the law to transform immorality into "legality." The military began shipping people swept up in Afghanistan and surrounding countries and dumping them in a remote corner of Cuba. An excruciating combination of torture, abuse, stonewalling, and lies ensued. Dubbed "enemy combatants" and denied basic protections of domestic and international law, the detainees were told they would be there for the "duration of the hostilities." This out-of-court judgment was a de facto life sentence since no one expected that a "global war on terror" fought in as many as 60 nations would be settled any time soon. For six Guantánamo inmates, death has already come — five by suicide and one from cancer.

Thousands of billable hours of painstaking work later, legal activists have ascertained the names and nationalities of all of the men detained at Guantánamo and filed habeas corpus writs and other legal challenges to grant them access to the U.S. courts. Multiple Supreme Court rulings and countless other legal judgments against the Bush administration's detention policies followed. As a result of legal and civil society pressure, the U.S. government has released many of the men imprisoned at Guantánamo — almost all of them without charge. Whatever the Pentagon's bogus claims of "detainee recidivism" (returning to the battlefield), the vast majority of released detainees have posed no threat to the United States.

What's Up at Guantánamo?

After signing the executive order in January, the Obama administration began reviewing the cases of the remaining detainees. Most of that work is now complete. Of the 240 cases, 90 men at Guantánamo — many of whom have been there for more than eight years — have been approved for transfer. They will not be charged with any crime.

For many, though, a new problem has emerged, since freedom from Guantanamo means returning to the nation they fled for fear of persecution. These men — like the ethnic minority Uighurs who fled persecution in China to live in poverty in Afghanistan only to find themselves imprisoned at Guantánamo — are the collateral damage of the war on terrorism. 

Very slowly, the Obama administration is parceling out these men to third countries. According to the Justice Department, 17 men have left Guantánamo since Obama came into office. Men held at Guantánamo for years have been shipped to Bermuda, Portugal, Yemen, and Ireland. Hungary is willing to take a single Palestinian man. Palau is likely to take in a number of former detainees.  Through all the diplomatic wrangling, the sad fact remains that innocent men, unjustly detained and often tortured, wallow in America's off-shore gulag.

As the administration courts more countries to serve as post-war-on-terror-detention way stations, it dodges a fight with Congress over welcoming some of these men into the United States. The administration has chosen to play international matchmaker instead of insisting that these men deserve to see the best of America, after experiencing the worst of America for all these years. The lamp beside the golden door has gone dim. Fearful of jeopardizing potential Republican support for its domestic agenda, and taken by surprise by the hysteria over the detainees' fate, the Obama administration has done little to correct the lies and distortions about who these detainees are and refute the absurd notion that they represent a security threat.

Then there are the cases of another 40 Guantanamo detainees referred for prosecution to military or civilian courts. This includes Khalid Sheikh Mohammed and four others accused of "complicity" in the September 11 attacks, who are likely to face federal court proceedings in New York City.

All told, the cases of about 100 Guantanamo detainees remain unresolved. Of these, The New York Times reports that "as many of several dozen may be held indefinitely, as the authorities have deemed them too dangerous to transfer but unable to be prosecuted because of problems with the evidence." In most cases, "problems with the evidence" means that the evidence was obtained through torture, or has been based on hearsay or coerced confessions. Obama has thus proposed a policy that drew understandable outrage during the Bush administration: that the United States maintain a system of "preventive detention" whereby it holds inmates indefinitely and without charge.

One proposal for this category of Guantánamo prisoners was to hold them in U.S. federal correctional facilities segregated from the rest of the prison population. The administration looked at facilities in Michigan, Kansas, and California that might be appropriate but seems to have lost that battle to the not-in-my-backyarders in Congress.

Gitmo East?

Along with the nosediving economy, the quagmire in Afghanistan, a still-bloody Iraq War, and a polarized body politic, the Obama administration inherited the legal and moral morass of Guantánamo. And it is now creating new morasses of its own at the Bagram prison in Afghanistan.

The Obama administration has made winning the war in Afghanistan a central foreign policy plank, pouring billions of dollars of new funding and thousands of new troops into subduing al-Qaeda and the Taliban. An undeniable part of that war effort is maintaining (and expanding) the detention facility at Bagram Air Field. Currently the facility holds a reported 600 detainees, most of whom are Afghans.

Efforts to extend access to U.S. courts to people held there have been largely unsuccessful. Last April, however, Judge John Bates ruled that those held at Bagram who were neither Afghans nor captured in the Afghan theatre are eligible for the right to habeas corpus and other legal protections.  Yet the Obama administration is challenging this ruling, seeking to deny the right to Bagram inmates that the Supreme Court upheld for those at Guantánamo.

As Melissa Goodman, a staff attorney with the American Civil Liberties Union (ACLU), told ABC News in August that little is known about those detained at Bagram. "We don't know who they are or how long they've been there," she said. "They don't have any access to counsel or access to courts." The ACLU sued under the Freedom of Information Act for basic data on the detainees, but Pentagon officials denied the request in July.

Moving Forward (But Where To?)

Right before he took office, President-Elect Obama responded to a question from George Stephanopoulos about investigating and prosecuting crimes committed under the Bush administration, including torture. He responded: "Obviously we're going to be looking at past practices and I don't believe that anybody is above the law."

If he stopped there, it would have been great. But he did not.

Obama continued: "On the other hand I also have a belief that we need to look forward as opposed to looking backwards...We have not made any final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing...my orientation's going to be to move forward."

What does "moving forward" look like? It looks like going after the little guys. Attorney General Eric Holder appointed a special investigator to look into allegations that Central Intelligence Agency personnel and private contractors hired by the CIA carried out torture.  But the investigation extends only to those who may have gone beyond the "enhanced interrogation" techniques — in plain language, torture — that Bush lawyers had declared "lawful." Even so many within the intelligence community are trying to fend off this investigation, saying that individual interrogators should not be held responsible for navigating through very murky legal waters of the Bush administration.

Obama has another option. He can go right to the top. If he needs some help figuring out whom he should go after, the Center for Constitutional Rights — which has filed cases against Donald Rumsfeld and others architects of the Bush torture policies — can help.

The activist legal organization has gotten creative, creating a deck of torture cards. Complete with baseball hats and baseball-like statistics, the "Torture Team" cards feature members of the Bush administration from the president on down to the lawyers who wrote the infamous "torture memos."

Happiness to Bitterness?

Paula Bronstein photographed Afghan men released from Guantanamo for a vivid Time Magazine piece. One picture shows Haji Nasrat Khan, the oldest man held at Guantánamo. The 77-year-old was released in 2006. He has a bushy white beard and dark inscrutable eyes that do not meet the camera.

In his statement to American authorities Nasrat said, "When (the Americans) came to Afghanistan everybody was waiting for America to help us build our country. We were looking for you guys and we were very happy that you would come to our country. The people who hated you were very few, but you just grabbed guys like me. Look at me. Our very happiness, you changed it to (bitterness)."

The United States wrestled these men from their home countries and held them from their families for as long as eight-and-a-half years. We found no evidence against them or, in collecting evidence and intelligence, failed to follow our own laws (which have served us well in every other war we've fought). The men have been destroyed physically, psychologically, and emotionally — and most of them have been found guilty of nothing.

We cannot give them back years of their lives. We can't give them back dignity, wholeness, or their faith in the goodness of America. We can't even — after 10 months of work — give them a satisfactory repatriation solution.

Happiness to bitterness. Moral high ground to quagmire. The Obama administration has a lot of ground to cover in the next four months.