Two days after his inauguration, President Obama pledged to
close Guantanamo within one year.
The Republicans, led by Senators John McCain, Mitch McConnell and Pat
Roberts, immediately launched a concerted campaign to assail the new
president. They claimed his plan
would release dangerous terrorists into U.S. communities and allow released
terrorists to resume fighting against our troops. Fox News agitator Sean Hannity and Bush
team players like torture-memo lawyer John Yoo filled the airwaves and print
media with paranoia.
The Republican attacks were
bogus. A 2008 McClatchy
investigation revealed that the overwhelming majority of Guantanamo detainees
taken into custody in 2001 and 2002 in Afghanistan and Pakistan were
innocent of wrongdoing or bit players with little intelligence value. A substantial number of those prisoners
were literally sold to U.S.
officials in exchange for bounty payments offered by the U.S. military. A
Hall Law Center report has debunked Pentagon claims
that many released detainees have "returned to the fight." And no one has ever
escaped from one of the U.S. super-max prisons, which house
hundreds of people convicted of terrorist offenses.
The Republicans have continued to
oppose the effort to close Guantanamo. In an attempt to burnish his image and
forestall war crimes charges, Dick Cheney now leads the charge, making
ubiquitous attacks on Obama. Keeping Guantanamo open is "important," Cheney
declares. He claims that closing Guantanamo would endanger Americans, and warns
that if detainees are brought to the United States, they would "acquire
all kinds of legal rights." Obama
is also taking heat from the intelligence community. Those officials, like Cheney, seek to
justify what they did under the Bush regime.
And now even the Democrats are
piling on the bandwagon. Reacting
defensively to the Republican attack campaign, the Senate voted 90 to 6 to deny
Obama funds to close Guantanamo until he comes up with a "plan" for relocating
the detainees there. "We spent hundreds of millions of dollars building an
appropriate facility with all security precautions on Guantanamo to try these
cases," said Democratic Senator Jim Webb on ABC News. "I do not believe they
should be tried in the United
States," he added.
The pressure has caused Obama to
buckle. Timed to coincide with a
Cheney speech to the right-wing American Enterprise Institute, Obama announced
an appeasement plan to deal with the 240 remaining Guantanamo detainees. Parts of his plan would threaten the
very foundation of our legal system - that no one should be held in custody if
he has committed no crime. These
are Obama's five categories for disposition of detainees once Guantanamo is
1) Those who violated the laws of war will
be tried in military commissions.
Obama's plan would backtrack on
an early promise to shut down the military commissions. Obama now claims that such commissions
can be fair because they will no longer permit the use of evidence obtained by
cruel, inhuman or degrading interrogation methods. He fails to mention, however,
that the Pentagon is using "clean teams" to re-interrogate people who were
previously interrogated using the prohibited methods. When they once again give
the same information, it miraculously becomes untainted. Obama also fails to
acknowledge that those tried in the military commissions are forbidden from
seeing all the evidence against them, a violation of the bedrock principle that
the accused must have an opportunity to confront his accusers.
Even the U.S. Supreme Court has disagreed with
this part of Obama's proposed plan of action. In Ex parte Milligan, the Supreme Court
declared military trials of civilians to be unconstitutional if civil courts are
Prisoners falling in this
category should be tried in the courts of the United States, because the laws of war are
actually part of U.S. law. The Supremacy Clause of the Constitution
says that treaties shall be the supreme law of the land. The Geneva Conventions
and the Hague Convention, which the United States has ratified, contain
the laws of war.
2) Those who have been ordered released
from Guantanamo will remain in custody.
Seventeen Uighurs from
China were ordered released after
they were found not to be enemy combatants. But they continue to languish in
custody because they would be imperiled if returned to China, which
considers them enemies of the state. Suggestions that they be brought to the
States have been met with paranoid NIMBY (not
in my backyard!) protestations. So,
under Obama's plan they will remain incarcerated in a state of legal limbo.
Those who cannot be prosecuted yet "pose a clear danger to the American
people" will remain in custody with no right to legal process of any
These are people who have never
been charged with a crime. Obama did not say why they cannot be prosecuted.
Secretary of Defense Robert Gates claims as many as 100 people may fall into
this category. Included in this group are those who have "expressed their
allegiance to Osama bin Laden." They will suffer "prolonged detention."
Obama's plan for "prolonged
detention" is nothing more than a newly-coined phrase for "preventive
detention," a policy that harks back to the bad old days of the Alien and
Sedition Acts of 1798 and the internment of people of Japanese extraction in the
1940's. If Obama succeeds in
convincing Congress to legalize "prolonged detention," the United States
will continue to be a pariah state among justice-loving nations. The U.S. Congress, still rendered
catatonic by post-9/11 rhetoric, will probably capitulate along with Obama.
Michael Ratner, president of the
Center for Constitutional Rights, noted that Obama's new system of preventive
detention will just "move Guantanamo to a new location and give it a new
4) Those who can be safely transferred to
other countries will be transferred.
Obama noted that 50 men fall into
this category. It is unclear what
will happen to them when they reach their destinations.
5) Those who violated U.S.
criminal laws will be tried in federal courts.
Obama cited the examples of Ramzi
Yousef, who tried to blow up the World Trade Center, and Zacarias Moussaoui, who
was identified as the 20th 9/11 hijacker. Both were tried and
convicted in U.S. courts and both are serving life
This is the only clearly
acceptable part of Obama's plan.
All detainees slated to remain in custody should be placed into this
category. The federal courts
provide due process as required by the Fifth Amendment to the Constitution,
which does not limit due process rights to U.S. citizens:
"No person . . . shall be deprived of life, liberty, or property without due
process of law."
The federal courts are well
suited to deal with accused terrorists. Indeed, federal judges who have presided
over such cases say that the Classified Information Procedures Act can
effectively protect classified intelligence in federal court trials.
If Mr. Obama proceeds with the
plan he announced this week he will empower those who point to
U.S. hypocrisy on human rights as a
justification to do us harm. Obama's capitulation to the intelligence gurus and
the right-wing attack dogs will not only imperil the rule of law; it will
actually make us more vulnerable to future acts of terrorism.