More “Congressional Depravity” on Guantánamo
On Monday, in an article entitled, "House Kills Plan to Close Guantánamo," I described my despair at the House Armed Services Committee's unanimous refusal to provide $350 million (out of a war budget of $726 billion) so that President Obama can close Guantánamo by moving prisoners to a facility in Illinois.
As I explained in the article, I was not upset that the administration's plan to replicate Guantánamo in Illinois was being turned down, because I have nothing but contempt for President Obama's assertion that 48 of the remaining 181 prisoners can continue to be held indefinitely without charge or trial, and simply moving them from Guantánamo to the US mainland would only make matters worse. However, what distresses me about the Committee's refusal to back the President's plan is that its only purpose is to keep Guantánamo open forever.
However, my criticism of lawmakers does not stop with this decision, which is likely to receive formal House approval this week, and approval in the Senate soon after. In its summary of the funding bill that contained the prohibition on buying a new prison on the US mainland, the House Armed Services Committee also laid down a set of demands regarding the release of prisoners, which encroaches further on the President's ability to release anyone from Guantánamo than was achieved last year, when lawmakers first rose up in revolt, passing legislation preventing any prisoner from being brought to the US mainland except to face trials, and insisting that they be given two weeks' notice before any prisoner - even those cleared by the courts after successful habeas corpus petitions - could be released.
In this latest assault on the Executive and the judiciary, the House Armed Services Committee's summary requires the President to submit "a comprehensive disposition plan and risk assessment" for any future release (or transfer) of a prisoner, and allows Congress "120 days to review the disposition plan before it could be carried out." In addition, the two weeks' notice demanded by Congress before any prisoner is released is to be extended to a 30-day review period.
This has clearly been set up as a national security concern - and is just as clearly influenced by the overreaction to the Christmas arrest of the would-be plane bomber Umar Farouk Abdulmutallab, who had apparently trained in Yemen, with a handful of Saudis who had been released from Guantánamo by George W. Bush. Critics of Obama were silent regarding this particular fact, and were also silent when it was pointed out that the men in question had been released by President Bush as part of a diplomatic deal with the Saudi government, in spite of the recommendations of the intelligence services. However, having effortlessly transferred all the blame for Bush's mistakes onto Obama's shoulders, the Senate Armed Services Committee had no qualms about inserting into its summary of the bill a requirement for defense secretary Robert Gates to tell Congress that any release or transfer must meet "strict security criteria to thoroughly vet any foreign country to which a detainee may be transferred."
Perhaps this sounds reasonable. After all, when Obama came to power, he chose to work more closely with Congress, and not to insist that he could unilaterally do whatever he wanted because of the allegedly limitless powers available to the Commander-in-Chief in wartime, as President Bush had maintained. However, what it means in practice is that, if the administration wishes to release a prisoner who has been cleared by a US court, after winning his habeas corpus petition, that prisoner can actually be held "in the status of ‘Congressional prisoner,' a status for which there is no Constitutional authority," for a period of 30 days.
The quote above is from Lt. Col. David Frakt, who wrote these words last October, with reference to the 15-day period which, at the time, Congress had granted itself to review the cases of prisoners before release - even those cleared by a US court. At the time, Lt. Col. Frakt refused to mince his words about Congress' unconstitutional activities. As the military defense attorney for the Afghan prisoner Mohammed Jawad, who won his habeas petition last July, but was not released for another 22 days because "[t]he Department of Justice said they needed a week to prepare the notice and then he couldn't be released until 15 days after that," he included the quote above in a more detailed criticism of Congress, in which he stated:
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 Mohammed 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.
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.
With the House Armed Services Committee now intent on doubling the amount of time that any prisoner - even those cleared for release by a US court - can be held as a result of this "Congressional depravity," I wrote again to Lt. Col. Frakt to ask for his opinion about this latest development, and received a reply by email in which he told me that "the unanimous vote on this committee report and the minimal level of publicity that it has generated" reflect two current aspects of US thinking, both of which are, to be blunt, depressing. The first, as Lt. Col. Frakt explained, is "a reversion in the mood of the country to the post 9-11 terrorist hysteria resulting from the failed Christmas Day and Times Square bombing attempts, and the fearmongering of politicians and the press surrounding these incidents." As he also explained, "With every seat in the House of Representatives up for election in November, the incumbent members of Congress are desperate not to give their opponents any potential ammunition to claim that they are soft on terrorists, or are ‘bringing terrorists to American soil.'"
This is certainly true, and reflects badly on a political system in which mid-term elections ensure that, just a year after the Presidential Election, the lowest common denominator of political campaigning takes precedence over anything else, but Lt. Col. Frakt also pointed out that the second reason is President Obama's own inability - or refusal - to make the reversal and thorough repudiation of Bush-era "national security" policies central to his administration's aims. As he explained, "the difficulty the administration is having following through on the President's pledge to close Guantánamo, including opposition within his own party, reflects the President's near-total lack of leadership on this issue since his inaugural pledge to shut Guantánamo." He added:
Since his first week in office, he has made it clear, through his inaction, and other direct and indirect signals, that closing Guantánamo is not a priority of the Administration. Having finally won one significant legislative victory with the health care reform bill, he wants to keep the momentum going and try to tackle some other major initiatives such as an energy/environment bill, financial market reform, and immigration reform. All of these will take some bipartisan cooperation, and he probably rightfully fears that a divisive fight over Guantánamo will derail his domestic agenda. On the other hand, if he made it clear that he considered the closure of Guantánamo to be a national security imperative and part of his overall war strategy, it is hard to imagine Congress openly defying the Commander-in-Chief during wartime on a military matter.
Unfortunately, by refusing to demonstrate leadership on the issues, the President has indeed played into the hands of his opponents - both in the Republican Party, and in his own party - and, moreover, seems to have failed to gain any political advantage from doing so. The losers are not just the Democrats, who look set to suffer heavy losses in November, but also the prisoners at Guantánamo, who now seem more abandoned than at any time since the first few years of Guantánamo's existence. Or, as Lt. Col. Frakt described it, "Sadly, the detainees at Guantánamo, both the guilty and the innocent, continue to be mere pawns in a drawn-out political chess game with no clear end in sight."