House Kills Plan to Close Guantanamo

President Obama's hopes of closing Guantanamo, which were already gravely wounded by his inability to meet his self-imposed deadline of a year for the prison's closure, now appear to have been killed off by lawmakers in Congress.

Although the House Armed Services Committee was happy to authorize,
by 59 votes to 0, a budget of over $700 billion for war ($567 billion
for "defense spending" and $159 billion for the wars in Afghanistan and
Iraq) for the fiscal year beginning in October, lawmakers unanimously
saw through - and turned down - a fraction of this budget for what the
administration had labeled a "transfer fund" - money intended to close
Guantanamo and buy a new prison in Illinois for prisoners designated for trials or for indefinite detention without charge or trial.

The administration had attempted to hide its intentions behind this
vague wording, because senior officials were acutely aware of ferocious
opposition in Congress to the closure of Guantanamo. Fueled by
opportunistic Republicans and backed by cowardly Democrats, Congress
had only been prevented at the last minute from passing an insane law
last year, which would have prevented the administration from bringing
any prisoner to the US mainland for any reason (even to face a trial)
and had only relented in October, allowing prisoners to be brought to the US mainland for trials, but not for any other purpose.

Despite this, the House Armed Services Committee is now trying to
withdraw from even this concession to the administration's aims,
including, in a summary of the bill, a prohibition on using even the
tiniest fraction of the war budget (around $350 million) to buy a new
detention facility. As Spencer Ackerman explained in the Washington Independent:

According to the bill summary, the bill now requires
Defense Secretary Robert Gates to give Congress a report that
"adequately justifies any proposal to build or modify such a facility"
if it wants to move forward with any post-Guantanamo detention plan.
"The Committee firmly believes that the construction or modification of
any facility in the US to detain or imprison individuals currently
being held at Guantanamo must be accompanied by a thorough and
comprehensive plan that outlines the merits, costs, and risks
associated with utilizing such a facility," the summary text read. "No
such plan has been presented to date. The bill prohibits the use of any
funds for this purpose."

This is a depressing example of how even a morally and ethically
flawed attempt to close Guantanamo is unacceptable to both Republican
and Democrat lawmakers, who have retreated to a position that the Bush
administration, at its most extreme, would have been proud of.

For those of us who don't mind prisoners being brought to the US mainland to face trials (35 in total, according to Obama's Guantanamo Task Force),
but who are implacably opposed to the administration's contention that
it can hold some prisoners indefinitely (48 of the remaining 181
prisoners), it is by no means a tragedy that the plan to replicate some
of Guantanamo's most unpalatable innovations on American soil has been
prevented.

In my more optimistic moments, it strikes me that, with the option
of transferring prisoners to the US mainland denied, the administration
will - if it remains committed to the closure of Guantanamo - have to
rethink its plans, and that one way of doing this would be to give up
on its intention to hold 48 men indefinitely, which, to put it bluntly,
is unconstitutional.

In truth, the claim that 48 men should be held indefinitely has
always been something of a deception, because these men have
outstanding habeas corpus petitions in the District Court in Washington
D.C., where judges, rather than an unaccountable Task Force, are making
their own decisions about whether they are, as President Obama
explained in a major national security speech last May, a special category of prisoner who "cannot be prosecuted yet who pose a clear danger to the American people."

So far, the judges have ruled that just 14 men
can continue to be held indefinitely, although it's noticeable that, in
denying their habeas petitions, they have generally not concluded that
they "pose a clear danger to the American people," but have, instead,
found that they were minor players
in the Taliban, or in al-Qaeda forces supporting the Taliban. However,
according to the detention policies they are required to follow, the
judges are not allowed to distinguish between the terrorists of
al-Qaeda and the foot soldiers of the Taliban when it comes to
consigning men, on an apparently sound legal basis, to endless
incarceration.

This problem relates to the Authorization for Use of Military Force,
passed by Congress the week after the 9/11 attacks, which authorizes
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 those who harbored them). Combined with a Supreme Court
ruling (in Hamdi v. Rumsfeld,
in 2004) that "Congress has clearly and unmistakably authorized
detention" of individuals covered by the AUMF, this is the rationale
used by the administration to justify the prisoners' detention, and,
although different judges have expressed different opinions about who
these individuals are, they have broadly agreed that, to qualify as an
"enemy combatant" - or, in Obama's new world,
an "alien unprivileged enemy belligerent" - the government is required
to prove, by a preponderance of the evidence, that these individuals
supported al-Qaeda and/or the Taliban.

This lack of distinction between al-Qaeda and the Taliban is clearly
ridiculous, as was noted last year by two judges, Judge James Robertson
and Judge Thomas Hogan, who made a point of stating, when refusing to
grant the habeas petitions of two Yemenis, Adham Mohammed Ali Awad and Musa'ab al-Madhwani,
that they did not regard either man as an ongoing threat. Regarding Ali
Awad, Judge Robertson noted, "It seems ludicrous to believe that he
poses a security threat now," and in al-Madhwani's case, Judge Hogan
stated that he "did not think Madhwani was dangerous," noted that he
has been a "model prisoner" since his arrival at Guantanamo in October
2002, and added, "There is nothing in the record now that he poses any
greater threat than those detainees who have already been released."

Moreover, this inability to make a distinction between al-Qaeda and
the Taliban - or al-Qaeda forces supporting the Taliban in military
operations in Afghanistan, rather than in activities related to
terrorism - is one that I have been railing against for some time now, for the simple reason that the former should be put forward for trials, whereas the latter - if they should continue to be held at all - should be held as prisoners of war according to the Geneva Conventions.

I don't see this happening anytime soon, of course, because no one
even wants to talk about it, but when the House Armed Services
Committee moves so decisively to prevent the closure of Guantanamo -
and every sign is that the House will approve their amendment this
week, and the Senate Armed Services Committee will follow suit at the
end of the month - the closure of Guantanamo now requires a new kind of
thinking.

To my mind, this should involve, first of all, more respect for the
District Court's habeas rulings than has been shown to date. Over the
last 20 months, judges have granted the habeas petitions of 35 prisoners,
and along the way have done more to demolish claims that Guantanamo
holds "the worst of the worst" than any other forum, exposing how much
of the government's supposed evidence consists of unreliable statements
made by the prisoners themselves or by their fellow prisoners,
and also exposing how torture, coercion and the bribery of prisoners
with better living conditions have played a major role in making these
statements unreliable. Despite this, the administration has failed to
take advantage of these rulings in its dealings with Congress, and has
preferred to either appeal them, or to release those who have won their petitions with extreme reluctance.

In addition, rethinking the closure of Guantanamo should involve
highlighting the fact that 96 of the 181 men still held have been
cleared for release, reviving plans for returning dozens of cleared men
to Yemen (which were shelved in the most cowardly manner
after it was revealed that the would-be Christmas Day plane bomber,
Umar Farouk Abdulmutallab, had trained in Yemen), and - although I
expect hell to freeze over before this comes to pass - renewing calls
for cleared prisoners who cannot be repatriated because they face the
risk of torture to be allowed to settle in the US, as was planned last year by White House Counsel Greg Craig, supported by Robert Gates and Hillary Clinton, until Obama got cold feet.

This could best be achieved by allowing US citizens access to the
stories of cleared prisoners released in other countries who are living
peaceful lives, and, if it's of any use, I'm happy to help on this
front, as I've spent much of the last three months traveling around the UK with a former prisoner, Omar Deghayes, showing "Outside the Law: Stories from Guantanamo"
(a film I co-directed, in which Omar plays a major part), and can
guarantee that giving people the opportunity to meet Omar (after they
have seen his pained and eloquent testimony about his ordeal) is a
perfect way to demonstrate that colossal mistakes were made - and
continue to be made - at Guantanamo, that many innocent men were
seized, and that many of these innocent men are still held.

And finally, to return to the confusion between al-Qaeda and the
Taliban that is at the heart of Guantanamo's detention problem,
rethinking the closure of Guantanamo should involve a recognition that
the failure to distinguish between al-Qaeda terrorists and Taliban foot
soldiers is unfairly consigning men to indefinite detention as
terrorists when they should be held as prisoners of war. In addition,
it should also provide an opportunity to reflect on the more
fundamental question of whether, over eight years after most of the men
who are still held at Guantanamo were first seized, the Authorization
for Use of Military Force is a valid reason for detention at all, when
the Geneva Conventions and the criminal justice system should suffice.