More "Congressional Depravity" on Guantanamo

On Monday, in an article entitled, "House Kills Plan to Close Guantanamo,"
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 Guantanamo 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 Guantanamo 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 Guantanamo 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 Guantanamo 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 Guantanamo 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 Guantanamo 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 Guantanamo 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.

He added:

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 Guantanamo, including opposition within his own party, reflects
the President's near-total lack of leadership on this issue since his inaugural pledge to shut Guantanamo." He added:

Since his first week in office, he has made it clear,
through his inaction, and other direct and indirect signals, that
closing Guantanamo 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 Guantanamo will derail his domestic agenda. On the
other hand, if he made it clear that he considered the closure of
Guantanamo 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 Guantanamo, who now seem more
abandoned than at any time since the first few years of Guantanamo's
existence. Or, as Lt. Col. Frakt described it, "Sadly, the detainees at
Guantanamo, both the guilty and the innocent, continue to be mere pawns
in a drawn-out political chess game with no clear end in sight."