The ad questioned the loyalty and patriotism of nine lawyers in the Justice Department lawyers who had represented prisoners at Guantánamo before joining the DoJ. Cheney is joined on the board of Keep America Safe by Bill Kristol and Debra Burlingame.

To be fair, Cheney’s ad has backfired badly, drawing the ire not only of those on the left, but also of heavyweight conservatives, nineteen of whom signed a statement last week denouncing it, declaring, “We consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications,” and adding that the attacks on the lawyers “undermine the Justice system more broadly,” by “delegitimizing” any system in which accused terrorists have lawyers, whether that system is federal court trials or Military Commissions.

Those who signed the statement included former Solicitor General Ken Starr, former Deputy Attorney General Larry Thompson, former White House lawyer Brad Berenson, John Bellinger, the former legal adviser to the National Security Council and the State Department, and two former detainee policy officials in the Bush administration, Matthew Waxman, and Charles “Cully” Stimson, who, ironically, was himself forced to resign from the DoD in 2007 after starting a similar witch-hunt against corporate law firms whose lawyers represented prisoners at Guantánamo.

Interestingly, another former Bush official who signed the statement is Daniel Dell’Orto, the Acting General Counsel for the DoD after the resignation of William J. Haynes in 2008. Dell’Orto was close to those who established the Bush administration’s torture regime as the deputy to Haynes, who was one of Dick Cheney’s key “War Council” lawyers, along with David Addington, John Yoo, Alberto Gonzales and Timothy Flanigan.

Further criticism came from the Conservative author and lawyer Paul Mirengoff, who “contrast[ed] what Cheney is doing to the anti-communist crusades launched by Sen. Joseph McCarthy,” as the Huffington Post’s Sam Stein explained, following a call to Mirengoff, and from Peter D. Keisler, an Assistant Attorney General in the Bush administration’s Justice Department, who told the New York Times that it was “wrong” to attack the lawyers, and that “There is a longstanding and very honorable tradition of lawyers representing unpopular or controversial clients.”

Moreover, in the Wall Street Journal on March 10, former Attorney General Michael Mukasey wrote that Keep America Safe’s argument was “both shoddy and dangerous.” Mukasey pointed out that “a lawyer who undertakes to represent someone whom his neighbors — perhaps rightly — revile as a threat to the public welfare is obligated to bring his talents to bear just as forcefully in favor of that client as he would if he were representing Capt. Alfred Dreyfus, the French artillery officer who in 1895 was found guilty of treason and sent to Devil’s Island for little more than being Jewish.”

This is all very encouraging, of course, because the only people who can legitimately complain that lawyers who worked on behalf of prisoners at Guantánamo shouldn’t work for the Justice Department and are, essentially, traitors to their country, are those who believe that time should have stopped before the Supreme Court ruled in June 2004 that the prisoners had habeas corpus rights; in other words, the right to ask why they were being held.

The only reason that the Supreme Court made this decision was because prisoners in Guantánamo who stated that they had been seized by mistake had no way of challenging their detention. This was because the Bush administration had created a legal black hole at Guantánamo, holding men (and boys) neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects, to be put forward for federal court trials on charges related to terrorism, but as “enemy combatants,” a novel category of human being with no rights whatsoever.

Those who worked on the prisoners’ cases may have been doing so for reasons that some Conservatives find distasteful, but the blunt truth is that those who took on Guantánamo cases were — and still are — working as part of a fully functioning civilized country that respects the rule of law, and those who regard such actions as a sign of fraternizing with the enemy are, if not just opportunistic leeches, playing the fear card, the kind of deluded people that America can do without, apologists for the dictatorial powers seized by President Bush that would have been anathema to the Founding Fathers.

Sadly, however, much of the damage wrought by Liz Cheney and her colleagues will never be undone. In a country where a large percentage of the population is permanently whipped up into a frenzy regarding the Obama administration’s response to terrorism by opportunistic broadcasters and lawmakers, who have seized on national security issues as a winning card in a relentlessly negative campaign, it’s probable that many of the Conservative voices criticizing Liz Cheney will have been ignored.

Even more worrying, however, is the fact that, despite this backlash in defense of America’s foundation as a country based on the rule of law, other Republican lawmakers continue to insist that they should be dictating the Obama administration’s policies, even though their proposals smack of the kind of hysterical overreaction that got us in this mess in the first place.

President Obama made a terrible mistake last May when he accepted calls to revive the Military Commission trial system for Guantánamo prisoners, and also signaled his willingness to continue holding other men indefinitely without charge or trial. A government driven more by principles and less by pragmatism would have insisted, as Obama suggested on taking office, that the only acceptable ways of dealing with the prisoners was to put them forward for federal court trials, or to release them.

This failure has given succor to those who are desperate to come up with novel ways of dealing with terrorist suspects that would have been far more difficult to launch had the administration acted more decisively. When Attorney General Eric Holder announced in November that five men — including Khalid Sheikh Mohammed — would face federal court trials for their alleged involvement in the 9/11 attacks, he was following a course that reflected the best of America’s legal traditions, and, as he recently told Jane Mayer of the New Yorker, “I don’t apologize for what I’ve done. History will show that the decisions we’ve made are the right ones.”

Nevertheless, by also reviving the Military Commissions, the administration allowed itself to be ambushed by critics who stirred up opposition to the decision to hold federal court trials, which has led to a ludicrous situation in which Sen. Lindsey Graham, in some unholy alliance with Obama’s Chief of Staff, Rahm Emanuel (who “walked out” the door whenever Guantánamo was mentioned, according to a source cited by Mayer) has been pushing Obama to reconsider the decision to try the men in federal courts.

Sen. Graham is not the only one pushing at Obama’s self-inflicted vulnerability on Guantánamo and related issues. Since the failed plane bomber, Umar Farouk Abdulmutallab, was apprehended on Christmas Day, countless critics have charged headfirst into the lawless space inhabited by Liz Cheney and Keep America Safe, arguing that Abdulmutallab should not have been interrogated by the FBI, read his rights, and charged in a federal court, and, in some cases, arguing that he should specifically have been waterboarded and sent to Guantánamo.

This, sadly, is no fringe activity reserved for lunatics, and just last week, Sen. John McCain and Sen. Joe Lieberman introduced a bill, the “Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010” (PDF), in which they proposed to ban civilian trials for those designated by the federal government as “unprivileged enemy belligerents.” The bill defines an “unprivileged enemy belligerent” as “an individual who (a) has engaged in hostilities against the United States or its coalition partners; (b) has purposely and materially supported hostilities against the United States or its coalition partners; or (c) was a part of al-Qaeda at the time of capture,” meaning that it could easily extend to anyone who allegedly supports hostilities against the US — including, it would seem, American citizens.

Moreover, the bill proposes stripping these “unprivileged enemy belligerents” of any of the legal rights usually afforded those accused of crimes in the United States, proposing that they should be taken into military custody for the purposes of interrogation and determination of their status, with the possibility that, after interrogation and determination of status, some might be designated as “high-level detainees.” In addition, the bill proposes holding these men “for the duration of hostilities,” and, if desired, putting them forward for trials by Military Commission.

In a ludicrously overblown press release, Sen. McCain ignored all the evidence that Abdulmutallab’s interrogation had provided useful information, stating that the primary reason for introducing the legislation was “to ensure that the mistakes made during the apprehension of the Christmas Day bomber, such as reading him a Miranda warning, will never happen again and put Americans’ security at risk.”

We are, I suppose, fortunate that Sen. McCain did not win the 2008 presidential election, as this bill so shockingly echoes almost every vile innovation that the Bush administration established in its “War on Terror.” However, it is depressing that, while Liz Cheney has provoked some Republicans to remember that America already has laws for dealing robustly and fairly with terrorist suspects as part of its criminal justice system, other Republicans are still intent on undermining history and America’s self-image by insisting that terrorists are warriors, ignoring the Military Commissions’ lamentable history of dealing with terrorist suspects, ignoring the federal courts’ successful history of dealing with those very cases, and, in the case of Senators McCain and Lieberman, apparently believing that resuscitating the darkest years of modern American history will serve any useful purpose at all.

Like Liz Cheney, McCain and Lieberman seem to have forgotten that dictators or those who support them, rather than elected officials who are obliged to uphold the US Constitution, are the only people who believe in holding people in arbitrary detention, neither as prisoners of war nor as criminal suspects, but as “enemy combatants” — or in 2010’s remake, “unprivileged enemy belligerents” — who can be held indefinitely, and interrogated in conditions that, when last tried out in the wake of the 9/11 attacks, led inexorably to the torture that John McCain used to deplore.

This story was originally published on the website of the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Deputy National Security Advisor for Homeland Security John Brennan. Photo/Pete Souza

What is to be done about the idiocy that has spread, like a poisonous but imperceptible gas, from the Pentagon to Congress, and is now wafting through the White House, deranging all it touches? As it travels, this dismal infection transforms statistical impossibilities into magic numbers, which appear, to the uninformed observer, to confirm the most shameless lies of former Vice President Dick Cheney: that Guantánamo was teeming with hardcore terrorists, who couldn’t wait to “return to the battlefield.”

Only last month, I tore into the mainstream media for abandoning all its fabled fact-checking and objectivity, when the Pentagon claimed, without producing any evidence whatsoever, that 1 in 5 prisoners freed from Guantánamo had “engaged in terrorist activity after their release,” and these claims were repeated as facts by numerous supposedly reputable media outlets.

As I explained at the time, this was just the latest installment in a campaign of misinformation, which, in May last year, led to humiliation for the New York Times, when its editors allowed a front-page story to run, claiming that 1 in 7 released prisoners (74 in total) had “returned to terrorism,” even though only 27 names were provided, and, of those, independent experts could only verify somewhere between 13 and 20 of them.

Last May, the Pentagon at least provided names, but last month’s fact-free assertions have now found their way to the White House, and were repeated on February 1 by John Brennan, the assistant to President Obama for homeland security and counterterrorism, in a letter to House Leader Nancy Pelosi, which was obtained by ABC News (PDF).

Brennan wrote that:

[T]he Intelligence Community assesses that 20 percent of detainees transferred from Guantánamo are confirmed or suspected of recidivist activity. This includes 9.6 percent of detainees who have been confirmed as having returned to terrorist activities, and 10.4 percent whom the Intelligence Community suspects, but is not certain, may have engaged in recidivist activities.

Brennan attempted to use these spurious figures to score points, asserting that all of the largely unidentified prisoners had been released by the Bush administration. Defending the Obama administration’s careful and thorough interagency review of the remaining prisoners’ cases, he wrote:

I want to underscore the fact that all of these cases relate to detainees released during the previous administration and under the prior detainee review process. The report indicates no confirmed or suspected recidivists among detainees transferred during this Administration, although we recognize the ongoing risk that detainees could engage in such activity.

Despite this, it frankly beggars belief that a spokesman for an administration that has pledged to close Guantánamo would publicly cleave to the kind of wretched propaganda that will make that task all but impossible.

So who are these approximately 116 men (out of the 532 prisoners released from Guantánamo under George W. Bush) who have allegedly “engaged in recidivist activities”?

We know, from earlier Pentagon claims, that this “recidivism” has included — and may well still include — publishing houses, the offices of newspapers, TV studios and film sets, because the Pentagon admitted (in a press release that was subsequently deleted from the Pentagon’s website, but is mirrored here) that it included former prisoners, like the Tipton Three — three young men from the West Midlands — who appeared in a film, “The Road to Guantánamo,” which dramatized their experiences, and the five Uighurs sent to Albania in 2006, after tribunals at Guantánamo cleared them of being “enemy combatants.” In the latter case, this was apparently because one of them, Abu Bakker Qassim, wrote an opinion piece for the New York Times in which he urged US lawmakers to defend habeas corpus.

In the years since, many more ex-prisoners have written books, newspaper articles and op-eds, and have appeared on TV and in films. Perhaps Omar Deghayes, the British resident (released in 2007), who appeared in the Guantánamo documentary that I co-directed, “Outside the Law: Stories from Guantánamo,” has now joined this ever-expanding group of “recidivists” who have dared to use their words and their voices to “attack” the United States for what it did to them in its brutal, experimental prisons in Afghanistan, Guantánamo and elsewhere.

Clearly, however, the main thrust of this propaganda is directed not at these men, but at others — 70, 80, 90 men, perhaps — who have supposedly engaged in terrorism since their release.

Is this plausible? In a word, no.

Even the most rampant apologists for the lawless regime created by George W. Bush, Dick Cheney and Donald Rumsfeld have never realistically tried to claim that more than a dozen or so Saudis slipped through the Saudi government’s rehabilitation program with their burning hatred of America still intact. Moreover, once a handful of other regularly cited names have been dealt with, and it becomes apparent that no “recidivists” have emerged from a vast array of countries — throughout Europe, North Africa and the Gulf — the only conclusion that a logical analyst can reach is that this vast and largely undefined number of “recidivists” must include as many as 1 in 3 of all the Afghans who were ever held.

This, to be honest, is no less preposterous, as only a handful of Taliban commanders (released through the Pentagon’s own ineptitude) were mistakenly freed from Guantánamo, but it at least has the benefit of a certain amount of logic, in that men repatriated to a country still occupied by a foreign army that is as useless at rounding up “terrorists” as it was eight years ago, may find a reason to resist the occupier on their doorstep, even if they have never been near a “battlefield” before.

Even this, however, presupposes that the Pentagon’s “facts” and “suspicions” are remotely accurate, and as researchers — particularly those at the Seton Hall Law School, who have relentlessly analyzed the repeated claims of recidivism — have demonstrated time and again (PDF), the propaganda does not stand up to any form of scrutiny. John Brennan may be at liberty to talk about a few dozen released prisoners who have “engaged in recidivism,” but entertaining the prospect that this figure could be as high as 116 is, to put it frankly, either a dereliction of duty, or a sign that he has fallen under the sway of Dick Cheney’s still malevolent influence.

To understand how easy it is for credulous officials to fall for this propaganda, I’d like to take you back to last month, when Senator Dianne Feinstein, who, laughably, is the head of the Senate Intelligence Committee, falsely claimed on CBS’s “Face the Nation” that “about a third of former inmates at the US naval base who have returned to fight against US interests come from Yemen,” as AFP described it. “If you look at Yemen, and we’re taking a good look at Yemen,” Feinstein said, “what you see is, I think, at least 24 or 28 are confirmed returned to the battlefield in Yemen, and a number are suspected. If you combine the suspected and the confirmed, the number I have is 74 detainees have gone back into the fight, and I think that’s bad.”

It was a poor day for the Senate’s “intelligence” when Feinstein (drawing on the May report) made this ridiculous statement. Its most baleful effect was to add a deceptive veneer of acceptability to the pressure exerted on President Obama to suspend the release of any more cleared Yemeni prisoners at Guantánamo, for one simple reason: only 16 Yemeni prisoners were released from Guantánamo between 2004 and November 2009, and only one of these men allegedly became involved in terrorism.

But in this new world of groundless hysteria, which seems to reveal only how the baleful reach of the Pentagon’s scaremongering has finally engulfed the White House, no one cares that Feinstein couldn’t even get her facts straight.

With John Brennan embracing the lie that 116 of the 532 men released from Guantánamo between 2002 and January 2009 have “engaged in recidivist activities” — and with a compliant and complacent mainstream media happy to regurgitate such rubbish without asking for facts — it may as well be true, as Feinstein claimed, that 28 of the 16 Yemenis returned from Guantánamo have become terrorists.

Once upon a time, we used to pride ourselves on making policy decisions based on facts, rather than on the propaganda that was so prevalent in totalitarian regimes. Now, however, we might as well give up all pretense that this is the case. Just as people were tortured in Guantánamo to produce false confessions that could be used in show trials, like every other totalitarian regime, representatives of the US government now attempt to scare and intimidate the American public with “facts” about “recidivism” that have no basis in reality. In 2010, fear blinds reason, and the truth, it seems, is irrelevant.

This report was originally published on the website of the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Throughout 2009, the interagency task force President Obama established by executive order on January 22, 2009, has been reviewing the cases of all the detainees being held at Guantánamo in order to determine who should be prosecuted and who should be released.

There are currently 198 prisoners still being held, 86 of whom — or 43 percent — are from Yemen.

In October, the Task Force reported that 78 prisoners had been cleared for release, including 27 Yemenis, and last month the total number of prisoners cleared had been revised upwards to 116, indicating that 40 to 45 Yemenis had been cleared (the administration did not provide exact figures this time around).

One of these men, Alla Ali Bin Ali Ahmed, a student seized in a Pakistani guest house whose release had been ordered by a District Court judge in May, after she granted his habeas corpus petition, was released in October, and six more men were released the week before Christmas.

Then, on Christmas Day, a Nigerian man named Umar Farouk Abdulmutallab allegedly tried but failed to blow up a plane bound for Detroit by setting off a bomb concealed in his underwear.

Initial reports suggested that Abdulmutallab had connections with an al-Qaeda-inspired group in Yemen, which included prisoners released from Guantánamo. And that was enough for critics of Obama’s decision to close the prison to demand that no more Yemenis should be released.

Although Obama’s top counterterrorism adviser John Brennan mounted a solid defense of the administration’s plans last weekend, on Tuesday the White House succumbed to continuing criticism and announced that no more transfers to Yemen would take place until some unspecified point in the future.

The problem with the argument that new information precludes their release is that none of it has anything to do with men who have been held in Guantánamo for the past eight years, entirely out of circulation, and obviously with no links to any terrorist group that has emerged in recent years. Moreover, the Obama administration has been reviewing the cases of the Yemenis in Guantánamo with some diligence, and had no intention of releasing men who might pose a danger. It has also been coordinating its efforts with the Yemeni government.

Furthermore, conclusions are being reached based, at least initially, on a poorly researched ABC News report, which indicated that two former prisoners had assumed leadership positions in al-Qaeda in the Arabian Peninsula (AQAP), the group that claimed responsibility for the failed attack. However, these connections have not been verified, and, moreover, one of the two former prisoners identified by ABC News had actually handed himself in to the Yemeni authorities in February last year, long before Abdulmutallab arrived in Yemen.

Indeed, what’s actually significant about these new developments is how the nationality of these men and who was responsible for releasing them in the first place have been overlooked in all the hysteria. The fact that these men were Saudis, and not Yemenis, has, rather shamefully, been ignored by the lawmakers and pundits calling for an end to the Yemeni transfers. Even more damning is the fact that they — and a handful of other released Saudis who are reportedly associated with terrorism — were released not by President Obama but by George W. Bush, after military review boards in which representatives of the intelligence services concluded that they should not be released, because they still posed a threat to the U.S.

The inescapable conclusion from all this is that the refusal to release any more Yemeni prisoners, whose cases have been studied in depth by numerous government representatives, represents nothing less than a capitulation to the most dismal kind of hysteria.

One of the most astonishing arguments in this entire debate has been that Guantánamo inmates such as these Yemenis, even if they were innocent to begin with, have been radicalized by their false imprisonment and brutal treatment and are now dangers to the U.S. But this kind of thinking must be vigorously countered.

Back in October, when the administration was attempting not to release Alla Ali Bin Ali Ahmed — despite a judge ordering his release — officials told the New York Times: “Even if Mr. Ahmed was not dangerous in 2002 … Guantánamo itself might have radicalized him, exposing him to militants and embittering him against the United States.”

But as I argued at the time, only at Guantánamo can fear trump justice to such an alarming degree. If the rationale for not releasing any of the Yemenis from Guantánamo was extended to the U.S. prison system, for instance, it would mean that no prisoner would ever be released at the end of their sentence. It would also, of course, lead to no prisoner ever being released from Guantánamo.

If prisoners are not going to be released, despite being cleared by Obama’s own Task Force (and, in some cases, by the U.S. courts), the entire system is revealed as a mockery of justice. And in its capitulation to the unprincipled fearmongering following the failed Christmas bomb plot, it seems to me that the Obama administration has played into the hands of those whose only wish is to keep Guantánamo open forever.

Background

Eighty-six of the remaining 198 prisoners are Yemeni (that’s 43 percent). In common with the rest of the prisoners — and in contrast to the Bush administration’s claims that they were “the worst of the worst” and were all “captured on the battlefield” — they were seized in a variety of locations.

Around 22 were seized in Afghanistan, another 35 were seized crossing from Afghanistan into Pakistan in December 2001, 25 were seized between February and September 2002 in house raids in Pakistan (including Ramzi bin al-Shibh, one of the alleged 9/11 plotters), and four were seized in other countries — Egypt, Georgia, Iran and the United Arab Emirates. Like two of the prisoners seized in Pakistan, including bin al-Shibh, these four were held in a number of secret prisons before their transfer to Guantánamo.

Ascertaining what these men were doing in Afghanistan and Pakistan remains a challenge. Some, encouraged by fatwas issued in their homeland, had traveled to Afghanistan to help the Taliban establish what was described as a “pure Islamic state.” This involved helping the Taliban defeat their enemies (the Northern Alliance) in an inter-Muslim civil war that began many years before the 9/11 attacks and had nothing to do with al-Qaeda. Others, however, had traveled for other reasons: to teach the Koran, or to provide humanitarian aid, and, in the cases of those who had traveled to Pakistan, some were students or were visiting in search of cheap medical treatment. Few are accused of any direct involvement in terrorism.

Part of the problem is that the Bush administration deliberately confused a war (against the Taliban) with the attempt to destroy al-Qaeda (a terrorist organization), holding everyone seized as “enemy combatants.” Instead, those accused of aiding the Taliban should have been held as prisoners of war, and protected by the Geneva Conventions, and those accused of aiding al-Qaeda should have been held as criminal suspects and put forward for federal court trials, as happened with Ramzi Yousef, the original World Trade Center bomber, the 1998 African embassy bombers, the shoe bomber Richard Reid, and the would-be 9/11 hijacker Zacarias Moussaoui.

It did not help that the majority of the prisoners (86 percent at least) were seized not by US forces, but by their Afghan and Pakistani allies, at a time when bounty payments, averaging $5,000 a head, were widespread, as researchers at the Seton Hall Law School demonstrated in 2006, through an analysis of the Pentagon’s own allegations.

Nor did it help that, despite the US military’s intentions, none of the prisoners received competent tribunals under Article 5 of the Geneva Conventions. Held close to the time and place of capture, and used in every war from Vietnam onwards, the tribunals were designed to allow prisoners whose status was in doubt (because they were not wearing uniforms, for example, or did not have a regular command structure) to call witnesses, to establish whether they were combatants or civilians caught by mistake. In the first Gulf War, 1,196 hearings were held, and 886 men were released. In Afghanistan, however, the need for tribunals was dismissed by the administration, with the result that, in the words of Maj. Gen. Michael Dunlavey, the commander of Guantánamo in 2002, the prison began filling up with “Mickey Mouse prisoners,” who had no involvement whatsoever with terrorism.

This column was originally published on the website of Nieman Watchdog.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

For now, however, I’d like to turn to the four Afghans transferred to the custody of the Afghan government, because, in contrast to the fearmongering of opportunistic Republicans, who continue to claim that Guantánamo is full of terrorists, the stories of these four men demonstrate instead the incompetence of senior officials in the Bush administration, revealing how, instead of detaining men who had any connection to al-Qaeda, or those responsible for the 9/11 attacks, they filled Guantánamo with what Maj. Gen. Michael Dunlavey, the commander of Guantánamo in 2002, described as “Mickey Mouse” prisoners.

Sharifullah, the US ally who had guarded Hamid Karzai

The first of the four Afghans, Sharifullah, who was 22 years old at the time of his capture, was seized by US forces from an Afghan military compound with another man, Amir Jan Ghorzang (identified by the Pentagon as Said Amir Jan), who was released from Guantánamo in September 2007. Both men were accused of hoarding explosives for the Taliban and being involved in various plots, but insisted that they were loyal government soldiers. In Guantánamo, Sharifullah explained that he was one of the first recruits in the new Afghan army, trained by British officers, and added that he had then spent seven months as part of a group that was responsible for guarding President Karzai. When he was unable to get a promotion, however, he returned to Jalalabad, where he had just taken up a new position as an officer when he was seized.

Amir Jan Ghorzang (photo, left) was the more vociferous of the two in Guantánamo, lamenting the fact that the US soldiers who had seized them had been duped by traitors who were taking money from both the US military and al-Qaeda, and were passing off innocent men as members of al-Qaeda and the Taliban. “I’m here because somebody got paid some dollars,” he explained, adding that he had been imprisoned by the Taliban for five years, because of his opposition to them, and had also worked for Haji Qadir, a commander who fought with the Americans during the battle of Tora Bora, a showdown between al-Qaeda and US-backed Afghan forces in December 2001.

The cases of both men — as with many other men who had been working for the Karzai government, but had been betrayed by rivals — revealed how little the US authorities were concerned with establishing the truth about their allegations, as it would have been easy to track down witnesses in Afghanistan who could have verified their stories (as reporters for McClatchy Newspapers did in 2008, when they interviewed Ghorzang). Nevertheless, he was, in the end, more fortunate than Sharifullah, whose continued presence in Guantánamo for two years and three months after his release was, frankly, inexplicable. As Ghorzang explained in the following exchange in Sharifullah’s tribunal, when he was called as a witness:

Sharifullah: Do you know that I was involved to work in the new government? Was I honestly working and working for the new government?
Ghorzang: You were working with the new government and he was involved with the Karzai government, in support of the Karzai government.

Mohammed Hashim: the fantasist put forward for a trial by Military Commission

The story of the second man, Mohammed Hashim, remains as bewildering now as it was when he was put forward for a trial by Military Commission at Guantánamo in May 2008, and I wrote an article entitled, “Afghan fantasist to face trial at Guantánamo,” in which I stated that the decision “appear[ed] to plumb new depths of misapplied zeal.” Hashim, who was about 26 years old at the time of his capture, was first seized by Afghan forces after he was found taking measurements near the home of Mullah Omar, the Taliban’s reclusive leader, and asking locals about security arrangements. Subsequently released, he was then seized again and handed over (or sold) to US forces.

If there was something about the circumstances of his initial capture that should have set alarm bells ringing, regarding his mental health, these were ignored when the US authorities decided to charge him with “conducting reconnaissance missions against US and coalition forces,” and “participating in a rocket attack venture on at least one occasion against US forces for al-Qaeda,” and ignored the fact that, at his tribunal, his testimony revealed that he was (as I described it) “either one of the most fantastically well-connected terrorists in the very small pool of well-connected terrorists at Guantánamo, or, conversely, that he [was] a deranged fantasist. From the resounding silence that greeted his comments at his tribunal, I can only conclude that the tribunal members, like me, concluded that the latter interpretation was the more probable.”

After explaining that he had spent five years with the Taliban, because he needed the money, Hashim proceeded to claim that:

he knew about the 9/11 attacks in advance, because a man that he knew, Mohammad Khan, “used to tell me all these stories and all the details about how they were going to fly airplanes into buildings. He didn’t tell me the details, that it was New York, but he said they had 20 pilots and they were going to orchestrate the act.” What rather detracted from the shock value of this comment was Hashim’s absolutely inexplicable claim that his friend Khan, who had told him about the 9/11 plan, was with the Northern Alliance, the Taliban’s opponents, who were also implacably opposed to al-Qaeda.

Hashim also claimed that he and another man had been responsible for facilitating Osama bin Laden’s escape from Afghanistan, and that, afterwards, he had worked as a spy, and had heard about how the Syrian government had been sending weapons to Saddam Hussein, which had then been sent to Afghanistan via Iran. As I explained at the time, the cumulative effect of Hashim’s statements was that it was “impossible not to conclude that [his] story was, if not the testimony of a fantasist, then a shrewd attempt to avoid brutal interrogations by providing his interrogators with whatever he thought they wanted to hear.”

A darker truth, of course, may be that his rambling statement actually revealed the themes pursued relentlessly by the interrogators at Guantánamo: not only “what do you know about the 9/11 attacks?” and “when did you last see bin Laden?” but also, at the insistence of Vice President Dick Cheney, “what was the connection between al-Qaeda and Saddam Hussein?” As we know from the interrogations of the CIA’s most famous “ghost prisoner” Ibn al-Shaykh al-Libi, who confessed under torture in Egypt that there were connections between al-Qaeda and Saddam Hussein, which was later used as part of the justification for the invasion of Iraq, securing this sort of information was regarded as critical in the run-up to the invasion, even though the administration claimed that its embrace of torture (or, rather, the euphemistically named “enhanced interrogation techniques”) was designed to prevent further terrorist attacks.

Abdul Hafiz: the wrong man with a satellite phone

The third man, Abdul Hafiz, who was 42 years old when he was seized in 2003 from his village near Kandahar, was accused in his tribunal of working for a Taliban militia group and of being involved in two killings in Kabul. It was also alleged that he was captured with a satellite phone linked to one of the killings, and that he “attempted to call an al-Qaeda member who is linked to the murder of an ICRC [International Committee of the Red Cross] worker.”

In response, Hafiz, who described himself as “handicapped” and who repeatedly stated that he has problems with his memory, claimed that his name was Abdul Qawi, and that he had been confused with Abdul Hafiz, because Hafiz, for whom he had been working, had given him the phone at a checkpoint. As he stated, “He told me that he did not have any documents to have the phone with him. So he said, ‘You can have my phone because you are handicapped and I don’t think they will search you.’” He added that he did not even know how to use the phone.

Describing Hafiz as someone who supported the new government of Hamid Karzai and was “preaching in the village to bring the peace,” he said, “I was working for him to bring peace … He gave me the telephone in the morning and told me to keep it in my pocket. He told me to work and preach to the people not to fight. That war is not good. This is the reason that I lost my leg. Fighting is not good. War does not have good consequences.”

He also explained, “I was just in my home when they captured me and brought me here. I didn’t do anything,” and expressed frustration at not being able to see classified documents containing evidence against him, saying, “In our culture, if someone is accused of something, they are shown the evidence.” At his review in 2005, he presented the board with letters from his family — all addressed to Abdul Qari, not Abdul Hafiz — including one from his brother, which read, “My respectful brother, you didn’t have any relationship with any political people. We were hoping that you would get released very, very soon. We do not understand why you’re still detained there without a crime.” He was clearly so desperate to be freed from Guantánamo and not to be “amongst these beasts and these people” (as he described his fellow prisoners at one point), that he even offered to present the board with a letter from his wife, even though “It is a big shame in our culture to read my wife’s letter to you, but now I am in a very tough situation.”

Mohamed Rahim: a spectacular case of mistaken identity

If the continued imprisonment of Abdul Hafiz (or Abdul Qari) appeared to be inexplicable, there was, on the surface at least, more of a case against Mohamed Rahim, the fourth prisoner released at the weekend, but this too collapses spectacularly under scrutiny. A resident of a village near Ghazni, Rahim was accused, in his tribunal, of being the chief of logistics for a company providing support directly to the Taliban government, of working for the Taliban Intelligence Office, and of controlling a large weapons cache for the Taliban. In response, he explained that he had been forced to work for the Taliban, and that, because he “was sick” and unable to fight, he was made to work in an administrative post. He denied the allegation that he worked for the Taliban Intelligence Office, calling it an “outrageous” accusation, and also denied controlling a weapons cache. “This doesn’t make sense,” he said. “I was captured in my house. I have no information on these weapons.”

By the time of his next review, in 2005, numerous other allegations had been added, including a claim that he was “identifiable as a former companion of bin Laden during the jihad against the Russians,” and another that he “was among a group protecting bin Laden at his last meeting at Tora Bora.” It was also suggested that he “was entrusted by bin Laden to exfiltrate his guard forces from Afghanistan back to their countries of origin,” and that “bin Laden and his companions spent the night in a house belonging to an Afghan acquaintance of the Detainee.”

There was more in this vein, including a claim that he “attempted to export gems from Afghanistan to Germany in order to raise revenue to finance al-Qaeda,” but what was completely overlooked by his review board — and presumably, by those who were supposed to be capable of analyzing the intelligence relating to the Guantánamo prisoners — is that when he stated, “I am a sick poor farmer with enemies,” he was telling the truth for one particularly glaring reason, which only emerged in passing in his review, when his Designated Military Officer (a soldier assigned to him in place of a lawyer) pointed out that he was Hazara.

One of four main population groups in Afghanistan — the others being Pashtuns, Tajiks and Uzbeks — the Hazara, Shia Muslims who are at least partly of Mongol origin, were despised by the Sunni Taliban, who slaughtered them in their thousands. As a result, it is not only appropriate to conclude that the allegations against Rahim were invented by his enemies, but also to conclude that his enemies in Guantánamo came up with the outrageous claims that he was intimately associated with Osama bin Laden.

Release or imprisonment in Afghanistan?

With the exception of Mohamed Jawad, who was released in August after he won his habeas corpus petition, these men are the first Afghans released since January 2009, when Haji Bismullah, who worked for the government of Hamid Karzai as the chief of transportation in a region of Helmand province, was released. Of the 219 Afghans once held at Guantánamo, there are now just 21 remaining in the prison, but it is uncertain whether the four men just released will regain their freedom, or whether, in common with all the Afghan releases since August 2007 (except Jawad, whose case attracted international scrutiny), they will be imprisoned on arrival in Kabul, in a wing of the main prison, Pol-i-Charki, which was refurbished by the US military, and which, although nominally under Afghan control, is reportedly overseen by Americans.

After all this time, and with such scandalous stories of ineptitude on the part of the United States, I would say that the least these men deserve is to be freed outright, and allowed to be reunited with their families.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

That AUMF was the handiwork of President George W. Bush and Vice President Dick Cheney, and it was rammed through House and Senate with almost no debate in the wake of the 9-11 attacks and then used to justify most of the subsequent assaults on the Constitution and Bill of Rights that are still haunting America and the world today.

While Congress saw the 2001 AUMF as an authorization to launch an attack on Al Qaeda in Afghanistan  (an attack that quickly toppled the Taliban government, but that famously failed to crush Al Qaeda, thanks to its being called off half a year later so troops could be shifted to a new war in the making against Iraq), Bush and Cheney interpreted it as a “declaration of war” in a “global war on terror,” which they claimed had no border, no end, and which they even tried to claim extended to within the boundaries of the US.

So anxious were Bush and Cheney to be permanent wartime generalissimos, unfettered by Constitutional constraints, that just minutes before the measure went to the Senate for a vote, according to then Senate Majority Leader Tom Daschle, they sought to add the words “in the United States” after the phrase “appropriate force” in the language of the resolution. As Daschle, who wisely refused their request, notes, “This last-minute change would have given the president broad authority to exercise expansive powers not just overseas—where we all understood he wanted authority to act—but right here in the United States, potentially against American citizens.”

The point though, is that the 2001 AUMF was in fact an authorization to use military force to go after terrorism.  It was not an authorization to conduct a full-scale war against another nation, or to become enmeshed in a civil war in another nation, which is what is going on in Afghanistan today. That, in fact, is why even Bush felt he needed a second AUMF to authorize his invasion of Iraq.

President Obama is trying to finesse this by falsely claiming, with a straight face, that Afghanistan is the “epicenter or terrorist activity” in the world. He is deliberately trying—and getting full support from the complicit corporate media—to conflate the Taliban with Al Qaeda to justify his absurd claim, too, by also falsely claiming in his speech that several unnamed “terrorists” have been apprehended in the US who were sent here recently from some ill-defined terror central inside of Afghanistan.

The truth is that not one act of terrorism outside of Afghanistan has been attributed to the Taliban of Afghanistan. The Afghan Taliban, while admittedly a brutal, reactionary, fundamentalist group of militant Islamists, are not global jihadis bent on wreaking havoc in the Western world or even in the rest of the Islamic world. They are a domestic Afghan military and political movement that is seeking to return to power in Afghanistan.

Al Qaeda, the organization that was the target of the Congressional AUMF resolution in 2001, has long since abandoned Afghanistan for safer, greener pastures.

This being the case, Obama’s war in Afghanistan, and especially his decision to intensify it dramatically, is being conducted illegally, without any actual authorization from Congress, as required by the Constitution.

If the president wants to mire the US further and more deeply in a civil war in Afghanistan at this point, aimed at defeating the Taliban in that country, he should at least be required to obtain a new resolution in Congress authorization that action.

As a constitutional lawyer, the president knows that he is acting illegally, which is why he was so careful in his speech to West Point cadets on Tuesday to make the bogus claim that Afghanistan remains the epicenter of terrorism. But governing by lies is no way to govern, and the American people will eventually realize that they have been lied to. Indeed, the fact that a majority of Americans, according to polls, want to see the Afghan War ended, shows that even given the biased pro-war media, most people understand this on some level.

The Bush/Cheney administration did much to undermine and wreck Constitutional government during their eight years in office. Many people had hoped that Obama was serious when he said during his campaign that he wanted to restore Constitutional governance if elected. But by his latest move, putting the US into a full-scale war in Afghanistan on the basis of a lie and without any genuine war resolution from Congress, he has joined his predecessor in further debasing both the Constitution and language itself.

Dave Lindorff is a Philadelphia-based journalist. He is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) and The Case for Impeachment (St. Martin’s Press, 2006). His work is available at thiscantbehappening.net

I spoke with him on Tuesday about his forthcoming documentary film, The Prosecution of George W. Bush for Murder, based on his bestselling book (pre-order DVD here http://www.indiegogo.com/bush).

I consider Vince a friend, an ally, and a hero, but we don’t see eye to eye on everything. I oppose the death penalty and all manifestations of revenge. I’m an atheist. I think the United States had a pretty darn horrible government before George W. Bush even came on the scene and that war lies have been a proud tradition of ours for centuries.

I see strategic advantage in pushing for accountability from underlings and for less than the most severe charges. Vince disagrees to various degrees on each of these points.

I don’t object to Vince’s choice to focus exclusively on one thing, because what he is focused on is one of the most important things anyone could. He is seeking to prosecute George W. Bush for the murder of the U.S. soldiers he sent into war on false pretenses.

Vince has written three New York Times #1 bestselling books, so he expected the one on prosecuting Bush to do well. It has, in fact, sold nearly 100,000 copies. But that is a shocking disappointment to its author.

The difference with this book was that the corporate media completely whited it out. There has not been a single review in a major newspaper (although the New York Times published an article about the lack of coverage).

And Bugliosi has not been put on national television to talk about this book, as he was with his other books. So, his publisher has been thrilled with the sales that have been generated through the independent media.

Vince told me he thought a blackout like the one of his book would not happen in any other country except perhaps Russia.

His topic, an illegal war on Iraq based on lies and the need to hold a former President accountable, is not discussed in the corporate media or even much by independent sources any more. It was a hot topic in 2005 and 2006, but the Democrats in Congress dropped it in 2007 when they obtained the power to do something about it. Vince has been flabbergasted by this every time I’ve talked to him for years now:

“How is it possible for George W. Bush to take this nation to war on false pretenses with the cataclysmic results that there have been, and America does absolutely nothing about it – How is that possible?”

I asked Vince if there was anything people could compel Congress to do that would help in any way. He said that a congressional committee had made a criminal referral to the Department of Justice which was now investigating whether baseball pitcher Roger Clemens had committed perjury when he testified that he hadn’t used steroids.

Bugliosi suggests, rather reasonably, that an apparent case of lying the nation into war should be similarly referred for prosecution. He made this same suggestion in his testimony before the House Judiciary Committee last July.

Why does this not happen? In Vince’s analysis, “the Democratic Party is much too civilized. They’re not fighters like the shrill and strident Republicans.”

Vince has spoken to large crowds around the country about his book. The forthcoming documentary, making the same case as the book, is built largely around a speech Bugliosi made at UCLA Law School.

Also included in the film is footage of my friends Carlos and Melida Arredondo who lost their son Alex in the Iraq War.

Another survivor shown in the film is Jane Bright who lost her son and expresses the guilt she feels for not having been there to stop a rocket from hitting him. She holds no ill will toward the Iraqi who shot the rocket who, she says, was just doing his job: “George Bush murdered my son.”

The film is still a work in progress, but a rough cut was shown to a group in Los Angeles last week, not a group of peace activists, but not necessarily a strictly representative sample of the country either. For what it’s worth, over 90 percent of the viewers said they would definitely urge their friends to see it, and the rest said they probably would.

Just as torture photos move Americans much more powerfully than written evidence of torture, the passion of the film may have an impact that reaches much further than the book. Footage of bloodshed in Iraq is juxtaposed with footage of Bush joking about WMDs, intended to show Bush’s lack of interest in honesty, as well as footage of Bush enjoying himself, intended to encourage the hatred that Bugliosi feels.

I asked Vince, as I always do, to explain his targeting of Bush for killing American soldiers who participated, but not innocent Iraqis who did not. Vince said that Bush was clearly guilty of the deaths of Iraqis (he STILL uses the outrageously low figure of 100,000 dead Iraqis in order to not overstate it).

However, Vince explains, he was not able to establish jurisdiction in America for trying Bush for those murders.

I asked why it is that the highest laws of our land cannot be enforced. The Constitution makes treaties, like the UN Charter, the supreme law of the land, but unless there’s a corresponding statute in the U.S. Code there’s nothing a prosecutor can do. Vince’s explanation was that, sadly, that’s just the way it is.

So I asked whether he would approve of the International Criminal Court developing the jurisdiction to prosecute the crime of aggressive war, and/or approve of Congress legislating criminal penalties for the same crime.

In the case of Congress, Bugliosi expressed concern that the creation of such a new law (which could not be used against Bush’s past crimes due to the Constitution’s ban on ex-post-facto laws) might be used to argue that heretofore the activity has been legal.

Bugliosi explained that the biggest obstacle he’s faced with his book has been the assumption by all sorts of people (he mentions Jerry Brown, once and perhaps future governor of California, as an example) that it’s simply not possible to prosecute a President for a war. But, Vince says, every single person who has argued that has admitted that they have not yet read his book.

I asked Bugliosi whether Jay Bybee’s Oct. 23, 2002, memo purporting to legalize aggressive wars, could make him complicit in murder. The question, Bugliosi said, would be one of proving that Bybee knew what he was writing to be false.

There are a million things I know I could never do, but I think I could persuade a jury on this one with no sleep, no breakfast, and a ban on using words with the letter ‘E’ in them. I have no doubt that Bugliosi could do it in a brief afternoon.

I asked Bugliosi what he would think if the Department of Justice were to indict Bush for the felonies of misleading Congress and making false statements to Congress. Bugliosi’s response was what it has been before: “That’s such small potatoes.”

Vince would be glad to include those charges as one count of an indictment, but only if another count was murder. The punishment for lying to Congress is far too low, he thinks, and — says Bugliosi — presidents lie to Congress all the time. (He acknowledged that while I think they do this about wars all the time, he thinks they do it only about other topics.)

We also talked about Pakistan and what we are doing there, in particular with drones. Bugliosi said the killing there could certainly be murder, regardless of whether it’s a war or what we call it.

And we talked about the just-opened investigation of Iraq war lies in England.

“I’m impressed with England,” said Bugliosi. ”Their nation is not in the decline that America is. I salute them for what they’re doing. If there’s a prosecution of George W. Bush in the United States, and if I’m involved, several of those witnesses would be asked to testify, including Manning and Dearlove.”

What about Blair? Has Tony Blair committed murder? We discussed this for a while.

Vince stressed that his focus has been on Bush. The question of whether Blair is guilty, Vince said, comes down to whether he lied to the British people in taking them to war. We discussed areas where it looked like Blair had lied.

Bugliosi pointed to the Downing Street Minutes in which the attorney general of the UK (Goldsmith) tells Blair that his planned war has no legal basis. The minutes state: “The Attorney General said that the desire for regime change was not a legal base for military action. There were three possible legal bases: self-defence, humanitarian intervention, or UNSC authorisation. The first and second could not be the base in this case. Relying on UNSCR 1205 of three years ago would be difficult. The situation might of course change.”

Bugliosi decided that the more he talked about it the more he would find Blair deserving of prosecution, but that Blair’s responsibility did not compare to Bush’s.

David Swanson is the author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press.  You can order it and find out when tour will be in your town: http://davidswanson.org/book.

This story was originally published on Truthout.org

The Obama administration indicated in court papers it may appeal a federal judge’s ruling ordering the Justice Department to release portions of the transcribed interview between former Vice President Dick Cheney and Patrick Fitzgerald, the special prosecutor appointed to probe the roles Bush administration officials played in the leak of covert CIA operative Valerie Plame Wilson six years ago.

Last week, Jeffrey M. Smith, an attorney in the Justice Department’s civil division, filed an emergency motion in US District Court in Washington, DC, requesting a 30-day stay of the court’s Oct. 1, order that called for the parts of the Cheney interview to be released by Oct. 9.

Smith said the stay, which US District Court Judge Emmet Sullivan granted, was needed “in order to allow the Solicitor General [Elena Kagan] sufficient time in which to exercise her statutory authority to determine whether the [Department of Justice] will file an appeal in this action.”

“This case involves an important issue that will require consultations at high levels of Government,” Smith said, adding that the stay “is necessary to avoid the irreparable harm that would result if the Government is forced to disclose its documents to the public before it has the opportunity to consider whether to pursue its appellate rights.”

The case stems from a Freedom of Information Act lawsuit filed last year by the public interest group Citizens for Responsibility and Ethics in Washington (CREW). The organization has been trying to gain access to Cheney’s interview transcript and has found its efforts thwarted first by Justice Department attorneys in the Bush administration, who had said the interview transcript was being withheld on national security grounds, and now by the Obama administration, whose attorneys said the material, if released, could become “fodder for The Daily Show.”

The resistance from the Obama administration has left some of its supporters shaking their heads. Not only does the obstruction go against President Obama’s pledge of government openness, but it is protecting the reputation of Cheney, one of Obama’s most vocal critics.

It was Smith who argued in July that the transcript of Cheney’s 2004 interview with Fitzgerald about the CIA leak should remain secret for as long as ten more years to protect Cheney from any political embarrassment that would result from the transcript being released.

As previously reported by Truthout, Sullivan rejected Smith’s argument as well as others that claimed releasing the contents of the transcript would derail law enforcement efforts to obtain the cooperation of sitting vice presidents in future criminal probes.

“Any attempt to predict the harm that disclosure of these records could have … is therefore inherently, incurably speculative,” Sullivan wrote in his ruling. “Accordingly, the Court concludes that DOJ has failed to meet its burden of demonstrating that the records were properly withheld.”

Sullivan, however, did agree that the Justice Department can keep under wraps, on national security grounds, statements Cheney had made to Fitzgerald about declassification discussions he had with George W. Bush, conversations Cheney had with former CIA Director George Tenet about Ambassador Joseph Wilson’s February 2002 trip to Niger to investigate allegations that Iraq was seeking to purchase yellowcake uranium, discussions surrounding the 16 words in Bush’s January 2003 State of the Union address that asserted Iraq had attempted to purchase the uranium, talks between Cheney and then National Security Adviser Condoleezza Rice and conversations between Cheney and other Bush officials about how to respond to media inquiries about the Plame Wilson leak.

Senior Bush administration officials disclosed Plame Wilson’s identity to several journalists in June and July of 2003 amid White House efforts to discredit her husband, Ambassador Joseph Wilson, for challenging Bush’s use of bogus intelligence to justify invading Iraq.

Plame Wilson’s CIA employment was revealed in a July 14, 2003, article by the late right-wing columnist Robert Novak, effectively destroying her career. Two months later, a CIA complaint to the Justice Department sparked a criminal probe into the identity of the leakers.

Initially, Bush professed not to know anything about the matter, and several of his senior aides, including political adviser Karl Rove and the vice president’s chief of staff I. Lewis Libby, followed suit.

However, it later became clear that Rove and Libby had a hand in the Plame leak and that Bush and Cheney had helped organize a campaign to disparage Wilson by giving critical information to friendly journalists.

On June 24, 2004, Bush was interviewed by Fitzgerald for 70 minutes about the Plame leak. The only other member of the Bush team in the room during the meeting was Jim Sharp, the private lawyer that Bush hired, according to a press briefing by then press secretary Scott McClellan.

“The President … was pleased to do his part to help the investigation move forward,” McClellan said. “No one wants to get to the bottom of this matter more than the President of the United States.”

A couple of weeks earlier, Cheney was interviewed by Fitzgerald. Cheney retained a private attorney, Terrence O’Donnell, to represent him in the matter.

Fitzgerald’s criminal investigation led to Libby’s indictment in October 2005 and his subsequent conviction in March 2007 on four counts of perjury and obstruction of justice, which Bush later commuted.

During closing arguments at Libby’s trial, Cheney was implicated in the leak, as Fitzgerald acknowledged that Cheney was intimately involved in the scandal and may have told Libby to leak Plame’s status to the media.

Court papers filed by Obama’s Justice Department in July revealed that Bush and Cheney were in contact about the scandal, including what is described as “a confidential conversation” and “an apparent communication between the Vice President and the President.”

That court filing also revealed that Fitzgerald questioned Cheney about his participation in the decision to declassify parts of a 2002 National Intelligence Estimate regarding Iraq’s alleged WMD. It ultimately fell to Bush to clear selected parts of the NIE so they could be leaked as part of the White House campaign to disparage Wilson.

Photo by U.S. Army Sgt. Sara Wood.

In a recent article, I examined the implications of an announcement that 75 of the remaining 223 prisoners in Guantánamo have been cleared for release. This came by way of a list posted in the prison, identifying the prisoners by nationality, and a statement by a military spokesman, Navy Lt. Cmdr. Brook DeWalt, who explained, “It was an opportunity to just provide better communication. There’s a lot of information out there and you get a lot of things from a lot of different angles. It helps put it in a more succinct context for them [the prisoners].”

The list is based on the deliberations of an interagency Task Force, established by President Obama on his second day in office, to determine who should be released, and who should continue to be held, and in my article I looked at the cases of 31 of the prisoners (26 Yemenis, three Saudis and two Kuwaitis, one of whom has since been released), pointing out that, in theory, there was no reason for them not be released immediately.

However, I also pointed out that members of Obama’s own administration had told the New York Times that the government was afraid of releasing the Yemenis (even though they had been cleared for release), because Guantánamo itself might have radicalized [them], exposing [them] to militants and embittering [them] against the United States,” and I should also have added, as former military defense attorney Maj. David Frakt pointed out to me in an email, that the men’s release is also dependent on the whims of Congress, where lawmakers “passed a law this summer that requires the administration to give Congress 15 days notice before releasing anyone from Guantánamo.”

Nevertheless, although Congressional obstruction may well be an additional complication (which I discussed in another article last week, “Lawyer Blasts ‘Congressional Depravity’ On Guantánamo”), it remains apparent that the route out of Guantánamo for these 30 men ought to be easier than it is for the other 44 prisoners cleared for release, as these are men who cannot be repatriated either because of fears that they will face torture or other ill-treatment (including arbitrary detention and show trials) on their return, or because (in the cases of two Palestinians) they are, effectively, stateless refugees.

Who are the 44 prisoners?

Of these 44 prisoners, 15 had their release ordered by judges in US District Courts, as a result of the habeas corpus petitions that were authorized by the Supreme Court in an extraordinarily important ruling in June 2008. 13 of these men are Uighurs — Muslims from China’s oppressed Xinjiang province, whose release was ordered by Judge Ricardo Urbina a year ago, and whose plight I have written about extensively (particularly here and here) — and the others are an Algerian, Sabir Lahmar, whose release was ordered last November, and Abdul Rahim al-Ginco, a young Syrian, tortured and imprisoned by al-Qaeda and the Taliban, whose release was ordered in June this year.

The other 29 are as follows: nine Tunisians, six more Algerians, three more Syrians, two Egyptians, two Uzbeks, two Palestinians, an Azerbaijani and a Tajik. Although their names have not been provided, the identities of the majority of these men can be deduced by a process of elimination (there are, for example, only two Egyptians, two Uzbeks, and one Azerbaijani in Guantánamo), and, in addition, the decision to release the Tajik prisoner, Umar Abdulayev, is known about because it was announced in July.

As I explained at the time, this decision was distressing to Abdulayev and his lawyers for two reasons: firstly, because when government lawyers announced that they would “no longer defend his detention,” they also announced that they “want[ed] US diplomats to arrange to repatriate him,” even though Abdulayev is terrified of returning to Tajikistan, because he was threatened by Tajik agents who visited him in Guantánamo.

Secondly, because the Task Force’s decision also led the Justice Department to ask a judge to drop Abdulayev’s habeas petition, prompting his lawyers to point out that the Task Force’s decision was “not a determination that [Abdulayev’s] detention was or was not lawful,” and that it therefore “does nothing towards removing the stigma of being held in Guantánamo or being accused of being a terrorist by the United States.”

This is actually a widespread problem for those cleared for release who fear repatriation, not only because recent rulings by the Court of Appeals have removed a number of judicial safety nets established by judges to prevent the enforced repatriation of a number of prisoners in Guantánamo (for whom the “stigma” of “being accused of being a terrorist by the United States” is of grave importance). But also because, in a wider sense, the Obama administration is unwilling to state openly that any prisoner was seized by mistake (as one of the prisoners’ lawyers recently explained to me, no lawyer would advise admitting responsibility, as it would open the floodgate to compensation claims). As a result, the administration is doing nothing to facilitate the work of Daniel Fried, the senior diplomat employed in March 2009 as the Special Envoy to Guantánamo, whose unenviable task it is to persuade other countries to accept released prisoners from Guantánamo.

Even putting aside for a moment the difficulties caused by the refusal of the Court of Appeals and Congress to accept cleared prisoners into the United States (which fuels a reluctance to help in European countries, as Fried acknowledged in a recent interview with the BBC), there are disturbing signs that this reticence on the part of the administration to state openly and categorically that colossal mistakes were made by the Bush administration is also undermining the very decisions made by Obama’s own Task Force.

Recently, for example, when Swiss officials visited Guantánamo to investigate the cases of four men cleared for release, in an attempt to work out if they would be prepared to accept any of these men, they returned, not with an honest appraisal, but with weighted conclusions that could only have been presented to them by the US military, who had, in effect, opened up their files and shown them material which purported to be evidence, but which, in other prisoners’ habeas petitions, has been demonstrated, time and again, to be nothing more than false allegations made by other prisoners (under duress or as a result of bribery) or by the prisoners themselves, multiple levels of unacceptable hearsay, and “mosaics” of intelligence that do not stand up to independent scrutiny.

According to reports in the Swiss media, the government representatives concluded that, of the four men they investigated, two Uighurs were “low-risk,” even though they are no risk at all, having persuaded the Bush administration to drop its claims that they were “enemy combatants,” and having been cleared by military review boards under the Bush administration, by a US District Court, and by the Obama administration’s Task Force, and two other men, an Uzbek and a Palestinian — also cleared by Bush-era military review boards and by Obama’s Task Force — were considered “medium-risk” and “high-risk.”

What has the Task Force been doing for eight months?

Beyond these absurd discrepancies, which do nothing to help Obama’s cause, the other conclusion I draw from an analysis of the Task Force’s figures is that, after eight months of reviewing the prisoners’ cases, it has made very little progress, despite detailed consultations with lawyers and other experts, despite detailed searches for information relating to the men, which was scattered throughout numerous departments and agencies in a disturbingly incoherent manner, and despite the establishment of a database bringing all the available information together in one place.

Although exact numbers are impossible to work out, it is clear that, of the 29 men cleared by the Task Force, all but nine (at most) were actually approved for transfer, between 2006 and 2008, by Administrative Review Boards at Guantánamo. When Obama came to power, eight Tunisians, five Algerians, four Uzbeks, three Palestinians, an Egyptian, a Libyan, and Umar Abdulayev, the Tajik, had all been approved for transfer. Some tweaking has taken place — a Palestinian has been removed from the list, and the Azerbaijani, Poolad Tsiradzho, has been added, plus an Algerian, an Egyptian, two Libyans and three Syrians — and, in addition, it is possible that the Task Force has shifted position on a few of those approved for transfer under Bush.

However, when added to the 14 or so Yemenis discussed in the last article, this figure of 25 or so prisoners is hardly a triumph for the Task Force, and indicates, yet again, that when it comes to Guantánamo, the President’s bold start in January, when he issued his executive order regarding the closure of the prison, has been steadily eroded by confusion, extreme caution and indecision.

If this damned icon of the dark years of George W. Bush, Dick Cheney, Donald Rumsfeld and their close advisors is ever to close, it is time for Barack Obama, Eric Holder and Robert Gates to regroup and to accept that confusion plays only into the hands of those haunted by the ghost of Dick Cheney, and that clarity is required. Moreover, despite lawyers’ fears of new waves of litigation, this clarity has to involve the nation’s leaders acknowledging why the District Courts have ruled, in 79 percent of the habeas petitions before them, that the men in question are neither terrorists nor soldiers and should be released.

The truth is out there — and I am only one of many writers who have been explaining it for the last four years — but I will spell it out again: the majority of the prisoners were seized for bounty payments by US allies, were never screened according to the Geneva Conventions to determine whether or not they were combatants of any kind, and are held not because of anything resembling evidence, but through a shamefully poor attempt to build up a case against them in the isolation of Guantánamo, through a combination of torture, coercion and bribery, and the use of raw intelligence masquerading as facts.

Everyone in Guantánamo deserves better than this: both the few dozen men who are genuinely accused of involvement with al-Qaeda, the 9/11 attacks and other acts of international terrorism, who should face trials for their alleged crimes, and the majority of the prison’s population, whose release is still being prevented, or made horrendously complicated, by both the Executive and the lawmakers in Congress — some innocent men, and others who were soldiers in a now almost forgotten civil war between the Taliban and the Northern Alliance, whose ongoing detention is based not on any notions of justice, but on the lingering legacy of the Bush administration’s mistaken decision to equate al-Qaeda with the Taliban.

Note: For more information on the prisoners cleared for release, see my article, “Guantánamo’s refugees,” and also see the following profiles on the Reprieve website: Ahmed Belbacha (Algeria), Nabil Hadjarab (Algeria), Said Farhi (Algeria), Adel Fattough Ali El-Gazzar (Egypt), Sherif El-Mashad (Egypt), Ayman al-Shurafa (Palestine), Adel Hakeemy (Tunisia), Hedi Hammamy (Tunisia) and Saleh Sassi (Tunisia).

This report was first published on the website of  The Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.