On the 9th anniversary of the terrorist attacks on New York and Washington D.C. on September 11, 2001 that prompted the launch of the Bush administration’s “War on Terror,” the closure of Guantánamo and calls for accountability for those who instigated torture and established secret prisons and imprisonment without charge or trial remain as important as ever.
This is especially true because, on this particular anniversary, the crimes and injustices initiated by the Bush administration are, arguably, less in the public eye than at any time in the last six years. In 2004, after the Abu Ghraib scandal first alerted US citizens to a culture of torture and abuse that was sanctioned at the highest levels of government (however much the administration tried to brush it off as the work of “a few bad apples”), the US Supreme Court intervened, in Rasul v. Bush, to raise awareness of the lawless plight of the prisoners at Guantánamo by granting them habeas corpus rights, allowing lawyers to visit the men and to begin to puncture the veil of secrecy in which Guantánamo had been shrouded for the first two and a half years of its existence.
From then until the end of Bush’s presidency, the administration and Congress did their best to ignore the Supreme Court’s ruling, with Congress reiterating its support for the President’s malign policies through the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, both of which purported to strip the prisoners of their habeas rights. Nevertheless, awareness of the injustice of Guantánamo grew steadily. During his second term, President Bush was obliged to pull back from various excesses, effectively closing his global network of secret prisons in September 2006, when he moved 14 “high-value detainees” from secret CIA prisons to Guantánamo, after the Supreme Court had forcefully inserted the Geneva Conventions’ obligation to treat prisoners humanely into his calculations in another important ruling in June 2006, Hamdan v. Rumsfeld.
In Boumediene v. Bush, a third ruling in June 2008, the Supreme Court reiterated that the Guantánamo prisoners had habeas corpus rights, ruling that the legislation passed by Congress that purported to strip the prisoners of their habeas rights was unconstitutional, and paving the way for a succession of habeas petitions to reach the US courts — 54 so far, of which 38 have been won by the prisoners.
When Barack Obama came to power, there was a sudden wave of interest in Guantánamo, and in President Bush’s legacy of torture and secret detention, but nine years on from 9/11, eight years and eight months since Guantánamo opened, and 20 months into Obama’s presidency, it is clear that, far from closing Guantánamo, as he promised in an executive order on his second day in office, President Obama now oversees a culture of indifference with regard to the fate of the Guantánamo prisoners, those held in the US prison at Bagram airbase, and others subjected to the CIA’s program of “extraordinary rendition” and secret prisons, many of whom are still unaccounted for.
No justice at Guantánamo
At Guantánamo, 176 prisoners await justice. Of these men, 93 have been cleared for release by the President’s interagency Guantánamo Review Task Force, but they remain held either for two particular reasons. The first — in the cases of men from countries including China, Libya, Syria and Tunisia, who cannot safely be repatriated — is because of difficulties in securing third countries that will take them and because the Obama administration challenged a judge’s ruling that they should be resettled in the US, and also stamped out internal efforts to do so that were initiated by former White House Counsel Greg Craig (who lost his job as a result).
The second reason is because 58 of the 93 men are Yemenis, and, in January, the President established an open-ended moratorium on releasing any Yemenis (even those cleared by his Task Force, or even — with one embarrassing exception — by the US courts) after a hysterical response to the news that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen. The fact that this constitutes “guilt by nationality” appears to trouble no one.
Of the other 83 men, 48 have been designated by the Task Force as men who should continue to be held indefinitely without charge or trial, even though this policy was at the heart of President Bush’s disturbing post-9/11 innovations, and another 32 are scheduled to face trials of some sort. However, as recent reports have shown, the administration does not appear to have the appetite to pursue cases either in federal court or in the revamped version of the Military Commissions that Obama revived with the aid of Congress (and in the face of sustained criticism from legal experts) last summer.
No appetite for trials
Capitulating to hysterical criticism, President Obama has backed down from Attorney General Eric Holder’s announcement in November 2009 that five men, including Khalid Sheikh Mohammed, would face federal court trials in New York for their alleged involvement in the 9/11 attacks, and also appears to have backed down from Holder’s proposal to try five other men by Military Commission.
Only two of these cases have proceeded to trial — that of Omar Khadr, a former child prisoner, whose trial (halted by his lawyer’s illness last month) is scheduled to resume next month, despite fierce international criticism, and that of Ibrahim al-Qosi, a cook for Osama bin Laden’s entourage, whose trial was conveniently sidestepped when he accepted a secretive plea deal in July. (Another man, Ali Hamza al-Bahlul, is serving a life sentence after a one-sided trial in October 2008, in which he refused to mount a defense, and another, Ahmed Khalfan Ghailani, was transferred to New York in May 2009, before the backlash against federal court trials began, and his trial is scheduled to begin next week).
Why Obama’s detention policy in unjust — and encourages inertia
As with the prisoners in general, the administration has settled into a cosy rut, content to rely on the legislation passed by Congress the week after the 9/11 attacks — the Authorization for Use of Military Force — as its justification for holding prisoners indefinitely, with occasional interruptions for their habeas petitions, or for trials by Military Commission. What no one wants to discuss is that the AUMF is, essentially, the founding document of the Bush administration’s indefinite detention program, used as the justification for holding prisoners neither as prisoners of war, according to the Geneva Conventions, or as criminal suspects to be tried in federal courts.
The fact that the Obama administration publicly declared an end to the coercive interrogations and torture practices that were also part of President Bush’s program does not compensate for the fact that the detention policy itself remains fatally flawed, authorizing the detention of the Guantánamo prisoners as a unique category of human being, even if they are no longer referred to as “enemy combatants.” Moreover, in maintaining this woeful state of affairs, the administration, Congress and the judiciary are all implicated.
As well as justifying inertia at the heart of the administration, this reliance on the AUMF has also infected the habeas legislation. Although 38 prisoners have won their habeas corpus petitions over the last two years — providing the most sustained, high-level critique of endemic faults in the government’s supposed evidence, including a regular reliance on torture and unreliable witnesses — the majority of the 16 men who have lost their habeas petitions have done so not because they were involved with terrorism, but because they were foot soldiers for the Taliban (or, in two cases, a medic and a cook). The AUMF not only fails to distinguish between al-Qaeda (a terrorist group) and the Taliban (at the time of the US-led invasion, a government with an army, however reviled internationally), but consigns both to ongoing indefinite detention if the judges in the District Court in Washington D.C. conclude that the government has established, “by a preponderance of the evidence,” that they were involved with either al-Qaeda or the Taliban.
No justice at Bagram
While this fundamental problem needs tackling (but is thoroughly ignored in the mainstream media), the Obama administration’s record is even worse in Afghanistan. In March 2009, three foreign prisoners rendered to Bagram up to seven years previously won their habeas petitions, when Judge John D. Bates ruled that their situation was, essentially, no different from that of the prisoners at Guantánamo, and that the habeas rights extended to the Guantánamo prisoners by the Supreme Court in Boumediene v. Bush should extend to them as well.
However, rather than accepting Judge Bates’ ruling, the Obama administration appealed, winning in May this year, and thereby demonstrating that, unlike Guantánamo, Bagram would remain a genuine Bush-era legal black hole. A new appeal on behalf of these three men was submitted last week — including new evidence, which I first reported in 2007, in my book The Guantánamo Files, confirming that one of the men, Fadi al-Maqaleh, a Yemeni, was transferred to the notorious Abu Ghraib prison in Iraq, before being rendered back to Bagram — but it would be unwise to assume that this appeal will be successful.
No accountability for torture
On torture, rendition and accountability, Bagram also features prominently as an example of President Obama hiding exceptions to the absolute ban on torture that he announced in an executive order on his second day in office, with numerous reports of a secret prison within Bagram, and of temporary holding facilities throughout Afghanistan that are also beyond the law.
In addition, in February, the President failed to prevent a notorious Justice Department “fixer,” David Margolis, from rewriting the conclusion to a damning internal investigation into the conduct of two lawyers in the Office of Legal Counsel who wrote and approved the notorious “torture memos” in August 2002, which purported to redefine torture so that it could be used by the CIA.
In writing and approving the memos, the two lawyers — John Yoo and Jay S. Bybee — twisted the law out of shape to provide the Bush administration with the phoney legal cover it required, and, along the way, besmirched the reputation of the OLC, which is obliged to provide impartial legal advice to the Executive branch. However, although the internal investigation found both men guilty of “professional misconduct,” Margolis insisted that they had only exercised “poor judgment,” thereby shutting the door firmly on calls for the two men (and those in the White House who were directing them) to be held accountable for their actions.
And finally, just two days ago, the Obama administration prevailed in further attempts to shield Bush administration officials from accountability, in a case against a Boeing subsidiary, Jeppesen Dataplan Inc., which provided logistical support for the CIA’s “extraordinary rendition” program. The lawsuit was filed on behalf of five victims of the program, including Binyam Mohamed, the British resident who was rendered by the CIA to Morocco, where he was reportedly tortured for 18 months.
Last May, a panel of judges in the Ninth Circuit Court of Appeals took exception to the Obama administration’s reliance on the state secrets doctrine — a little used shield preventing judicial scrutiny of government actions, which was favored by President Bush — to prevent the case from proceeding. However, on Wednesday, by six votes to five, the full court upheld the government’s appeal, preventing the plaintiffs from having even a single day in court to tell the world what happened to them.
The use of the state secrets doctrine was clearly cynical, and serves only to demonstrate not only how far President Obama has strayed from his pre-election promises of transparent government, but also how closely he has clung to key aspects of President Bush’s belief in unfettered executive power.
The case may now proceed to the Supreme Court, but on the 9th anniversary of 9/11, as an insignificant pastor’s plan to burn copies of the Qur’an dominates headlines worldwide, the bleaker truth is that, when pushed, President Obama has chosen to insult Muslims far more deeply, essentially supporting legal maneuvering designed to ensure that Bush administration officials who authorized the torture of Muslims will not be held accountable, no matter how much the victims of these horrendous policies wish to present evidence of their torture in a US court.