It could just be coincidence, of course. But just as a huge scandal unfolds in Washington over a seemingly botched guns-drug operation, and a possibly cover-up by Attorney General Eric Holder, the Department of Justice has announced a big crackdown on medical marijuana dispensaries in California, long the leader in the medical marijuana movement. Something is very wrong here.

The guns-drug operation, run through the Bureau of Alcohol, Tobacco, and Firearms (BATF), was titled “Fast and Furious.” According to the Arizona Republic (h/t bmaz), it was “a federal gun-trafficking investigation that put hundreds of rifles and handguns from Arizona into the hands of criminals in Mexico.” “Legal guidance” to the BATF was provided through the Arizona U.S. Attorney’s office. As the botched operation became known, an early casualty of the scandal was AZ U.S. Attorney Dennis Burke, who resigned over the affair last August. Kenneth Melson, the former acting head of the BATF, would follow Burke out months later.

How botched was this operation, run, according to Congressional testimony, with help from the Internal Revenue Service, Drug Enforcement Administration, and Immigration and Customs Enforcement? According to a Jan. 8, 2010 briefing paper (PDF) from the BATF Phoenix Field Division Group, from September 2009 through January 2010 (date of the briefing), at least 20 gun traffickers had “purchased in excess of 650 firearms (mainly AK-47 variants) for which they have paid cash totaling more than $350,000.” According to news reports, ultimately, the number of guns sent over the border to Mexican drug cartels would number in the thousands, including hundreds of weapons to the brutal Sinaloa drug cartel. Meanwhile, ATF honchos watched the sales over closed-circuit video feed.

In December 2010, a Border Patrol agent was gunned down by a weapon traced to the “Fast and Furious” program, and that was too much for one BATF whistleblower: “Senior agents including [John] Dodson told CBS News they confronted their supervisors over and over…. “We just knew it wasn’t going to end well. There’s just no way it could,” Dodson said.

And what happened to all those guns, which were supposed to be tracked by U.S. agents? The BATF says it simply lost track of the weapons, which beggars all sense. As reported at Forbes:

ATF field agents were sending protests up their chain of command, because, as ATF Special Agent John Dodson told the House Government Reform and Oversight Committee on June 15, 2011, he and fellow agents were regularly ordered to abandon surveillance of suspicious gun purchases “knowing all the while that just days after these purchases, the guns that we saw these individuals buy would begin turning up at crime scenes in the United States and Mexico”….

ATF Special Agent Olindo James Casa also said at the June hearing that “on several occasions I personally requested to interdict or seize firearms, but I was always ordered to stand down and not to seize the firearms.”

According to Washington Times journalists Robert Farago and Ralph Dixon in an article last August, the Fast and Furious program was a cover-story for a covert CIA program to arm the Sinaloa cartel in prevent the competing Los Zetas cartel from staging a coup against the Mexican government. And — shades of the late Gary Webb! — the journalists claim the relationship extended to “(allowing) the Sinaloas to fly a 747 cargo plane packed with cocaine into American airspace – unmolested.”

First, the government instructed gun dealers to sell guns to suspicious characters, which were then “walked” across the border. Then the government failed to inform Mexican authorities anything about the operation (possibly because they didn’t trust them?). In any case, we are supposed to believe that government authorities simply lost track of the weapons?

The Dirty History of the CIA and the War on Drugs

The U.S. intelligence agencies have a long history of using drug running and drug proceeds to finance off-the-books covert activities, including wars, the buying of elected officials, and the smuggling of weapons to favored groups. The late Gary Webb, referenced above, was castigated by the mainstream press, did ground-breaking work on the connection between gun-running to the Contras, paid for by cocaine trafficking in the U.S., officially denied by the U.S. government, but later documented in Congressional hearings by John Kerry (see this 2004 Salon article). Webb lost his career and later his life to bring the truth to the American people.

The GOP and the right will only threaten Obama and Holder with scandal up to a point. They certainly will pull back before the intel community cries uncle too loudly, and only seek to investigate to smear the Obama administration, not to really blow the lid off sixty years of U.S. dirty games with drug traffickers.

The links between the CIA and Mexican drug cartels were highlighted recently in the federal criminal case against alleged Sinaloa cartel “kingpin,” Jesus Vicente Zambada Niebla. According to an article by Bill Conroy at Narcosphere, “US government prosecutors filed pleadings in the case late last week seeking to invoke the Classified Information Procedures Act (CIPA), a measure designed to assure national security information does not surface in public court proceedings.” Why CIPA in this case? Niebla has asserted in court filings last July that “the US government… [cut] a deal with the the ‘Sinaloa Cartel’ that gave its leadership ‘carte blanche to continue to smuggle tons of illicit drugs into Chicago and the rest of the United States.’”

The use of the supposed war on drugs to hide money, guns and influence, and at times to actually deal drugs at the behest of the government has been the subject of some notable and influential investigations over the years. Besides Webb, there was Alfred McCoy’s The Politics of Heroin in Southeast Asia: CIA Complicity in the Global Drug Trade, and more recently, Douglas Valentine’s The Strength of the Wolf: The Secret History of America’s War on Drugs.

Guns to Drug Lords, Jail for Medicinal Marijuana Club Owners

The GOP and right-wing press has been having a field day with this story, and the sudden appearance of documents showing Holder was briefed on the program when he appeared to say he knew nothing about it, has sharpened the GOP’s talons, out for Administration blood.

So what’s an embattled DoJ to do? They appear to have decided now is a good time to crack down on medical marijuana dispensaries in California, the better to burnish their anti-drug credentials. According to the Washington Post, “at least 16 pot shops or their landlords received letters this week warning face they would face criminal charges and confiscation of their property if the dispensaries do not shut down in 45 days.”

A story at NPR suggests the roots for the crackdown are in a memo put out last June by Deputy Attorney General James M. Cole. Noting that the Administration’s policy had been that limited funds precluded going after pot sold to caregivers and the ill, Cole announced that things had changed (bold emphasis added):

The Department’s view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes….

The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law….

The Obama administration has taken a much tougher line when it comes to the recreational or medicinal user of marijuana than it does to drug cartel gangsters. And the GOP, anxious to make Holder look bad, will line up behind the anti-marijuana crusade.

Truly the hypocrisy in this country is so thick you couldn’t cut it with a buzz saw. There should be investigations over the “Fast and Furious” operation and possible intelligence connections to the drug cartels; meanwhile, the administration should pull back from their anti-marijuana stance. The drug should not be illegal, but licensed, controlled, and sold commercially for the relatively mild intoxicant that it is, one that also has some beneficial medical uses (just like alcohol!). Abuse of the drug is a matter for public health policy, not jails.

Originally published on The Dissenter.

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor to Truthout and The Public Record, blogs about civil liberties and issues revolving around the US government’s torture program at The Dissenter. He can be reached at sfpsych at gmail dot com. Follow Jeff on Twitter: @Jeff_Kaye

Photo/Wikimedia

Last Monday, on the very same day that the Obama administration gave up on Guantánamo, so too did the Supreme Court. As far as we know, it was not a choreographed climbdown — nor had money been offered by George W. Bush and Dick Cheney to rehabilitate their legacies — but the effect was the same.

For opponents of the unconstitutional aberration that is Guantánamo, last Monday — April 4, 2011 — will go down in the history books as the day that they were obliged to watch impotently as federal court trials for terrorist suspects were discarded or discredited, the tired and tawdry looking “War on Terror” was revitalized, and the Supreme Court, through its inaction, decided that judges in the D.C. Circuit Court — who have publicly criticized the Supreme Court for incompetence — should continue to decide detainee policy at Guantánamo.

What this means, as I will spell out in detail below, is that, having gutted habeas corpus of all meaning in rulings over the last 15 months, the D.C. Circuit Court will be allowed to continue deciding that every prisoner still held at Guantánamo should — and very possibly will — be held forever, regardless of whether they were cleared for release by other judges, or by the President’s own interagency Guantánamo Review Task Force.

In last Monday’s first capitulation, the Obama administration — via Attorney General Eric Holder — abandoned a 16-month promise to try alleged 9/11 mastermind Khalid Sheikh Mohammed and four others in federal court, capitulating to Republican pressure — and a ban on moving prisoners to the US mainland to face trials, which was unconstitutionally implemented by Congress in December — by announcing that the men would, instead, be tried by Military Commission at Guantánamo.

The administration therefore fulfilled a key Republican aim — ensuring that the highest-profile prisoners in Bush’s “War on Terror” would be regarded as “warriors” rather than as criminals — and, in effect, turned the clock back to 2008, when the Bush administration held three pre-trial hearings in the Military Commissions of these five men.

Admittedly, the Obama administration bears the ultimate responsibility, having revived the Military Commissions in the summer of 2009, when senior officials could have consigned the reviled system to the grave of failed legal novelties. In addition, it may all backfire, as the Commissions are built on dubious legal sands, and the proceedings tend to be full of holes through which determined defendants like Khalid Sheikh Mohammed will be able to mock America more successfully than in federal court. However, the end result is that Republicans — and, should they wish, George W. Bush and Dick Cheney — will be able to claim that they were right all along.

On the judicial front, the Supreme Court has ducked Guantánamo since its last major intervention, in Boumediene v. Bush, in June 2008, when the justices ruled that the prisoners had constitutionally guaranteed habeas corpus rights, and also ruled that Congress had acted unconstitutionally by attempting to strip the prisoners of those rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

Although this was an enormously important decision, reinforcing the unusual but crucial ruling in June 2004, in Rasul v. Bush, that the prisoners, though seized in wartime, had habeas rights because the Bush administration had cut off all mechanisms whereby innocent men seized by mistake could prove their innocence, it also sowed the seeds of last Monday’s disaster.

Essentially, the Supreme Court refused to provide a description of an “enemy combatant,” leaving it to the lower courts to decide that, and although the District Court in Washington D.C. did a fine job of coming up with its own definition, and applying it in practice — and tweaking it along the way — in 41 cases from October 2008 to December 2009, for the last 15 months judges in the D.C. Circuit Court (the court of appeals) have fought back, with a number of notoriously right-wing judges refusing to accept the District Court’s generally accepted decision that some sort of involvement in the command structure of al-Qaeda and/or the Taliban is necessary to deny their habeas petitions.

Beginning with Al-Bihani v. Obama in January 2010, in which D.C. Circuit Court judges argued for no limit on the President’s wartime powers in the case of a Yemeni cook for Arab forces supporting the Taliban in Afghanistan, other panels have attacked the “command structure” argument, insisting that being “part of” al-Qaeda and/or the Taliban is sufficient to justify ongoing detention for life, and proceeding to attack the already low threshold required of the government — that it demonstrates its case by a “preponderance of the evidence,” rather than “beyond any reasonable doubt.”

What the D.C. Circuit Court desires, as judges have occasionally spelled out, is for the burden to be nothing more than “some evidence” — and that in a very open-ended way, as I explained in my last broadside directed at the Circuit Court. If they could, one suspects that the Circuit Court judges would simply return to the Combatant Status Review Tribunals at Guantánamo, held in 2004-05, which the Supreme Court in Boumediene found “insufficient.” In the CSRTs, the burden of proof was not on the government, but, outrageously, on the defendant, even through the prisoners in Guantánamo had no way of securing any evidence in their favor, or even of knowing what the government’s supposed case was against them.

In an attempt to overturn the Circuit Court’s dominance of all the arguments regarding the Guantánamo prisoners, a number of submissions have been made to the Supreme Court in recent months, and although these have all been turned down, as I mentioned above, it is worth analyzing what has been happening, in order to understand more thoroughly the dark forces that are now in control.

In an excellent editorial last month, the New York Times addressed the problem with the D.C. Circuit Court, focusing specifically on the court’s opposition to  attempts by the Uighurs — Muslims from China’s oppressed Xinjiang province, seized by mistake, who won their habeas petition in October 2008 — to be allowed to live in the US.

Although the judge in their case, Judge Ricardo Urbina, ordered that they be brought to live in the US in October 2008, the Bush administration — and then the Obama administration — appealed, and in February 2009, long before the Circuit Court specifically began meddling in reversing successful habeas opinions, or unilaterally calling for an expansion of executive power — the Circuit Court agreed. Under Judge A. Raymond Randolph — notorious for endorsing every opinion about Guantánamo under President Bush that was subsequently overturned by the Supreme Court — a panel of judges ruled, as the Times described it, that Judge Urbina “lacked authority to free them in the United States because the ‘political branches’ have ‘exclusive power’ to decide which non-Americans can enter this country.”

Since then, although 12 of the 17 Uighurs have accepted new homes (in Bermuda, Palau and Switzerland), the Court has continued to resist claims made by the other five, who turned down offers to rehouse them made by Palau and at least one other unidentified country, because they did not trust those countries to protect them from the Chinese government.

Appalled by this decision, and by all the other developments in the last 15 months, the Times boldly pointed out that the D.C. Circuit Court “has dramatically restricted the Boumediene ruling,” and that, “In its hands, habeas is no longer a remedy for the problem the Boumediene majority called ‘arbitrary and unlawful restraint.’”

The editors proceeded to note that, in the Uighurs’ brief to the Supreme Court, challenging this decision (as the latest instalment of a case that has bounced around the courts for the last two years), their lawyers point out explicitly that the only constant factor in this case is “the court of appeals’ refusal to apply, or even acknowledge” the Boumediene ruling, and the editors also provided an eye-opening glimpse into the partisan nature of Judge Randolph’s opposition to the decisions regarding Guantánamo that have come before him, explaining:

Judge Randolph … wrote the opinion for the District of Columbia Circuit that the Supreme Court overturned in Boumediene. In a speech called “The Guantánamo Mess” last fall, he said that the justices were wrong to do so and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in The Great Gatsby. “They were careless people,” he read. “They smashed things up … and let other people clean up the mess they had made.”

This contemptuous approach to the Supreme Court’s ruling prompted the New York Times to respond:

In Kiyemba [the Uighurs' case] and related cases, however, it is Judge Randolph and others on the District of Columbia Circuit who are making the mess. Respected lawyers say they are subverting the Supreme Court and American justice. Of 140 challenging their detentions in the face of this hostility, dozens who should have been freed will likely remain in prison.

In conclusion, the Times sought to remind the Supreme Court that “Alexander Hamilton called ‘arbitrary imprisonments’ by the executive ‘the favorite and most formidable instruments of tyranny,’” and that, in Boumediene, Justice Anthony Kennedy “stressed that habeas is less about detainees’ rights, important as they are, than about the vital judicial power to check undue use of executive power,” adding that this is important because the Circuit Court “has all but nullified that view of judicial power and responsibility backed by Justice Kennedy and the court majority,” and that the Supreme Court should now remind the Circuit Court “which one leads the federal judicial system and which has a solemn duty to follow.”

If the Times‘ editors made a valid case — and I believe they did — then it was the Supreme Court who failed to take their responsibilities on board, because last Monday they refused to consider the Uighurs’ case, and also turned down three other habeas-related submissions — challenging the government’s use of hearsay, the “preponderance of evidence” standard, and the sweeping executive powers endorsed in Al-Bihani.

To date, analysts have suggested that the Supreme Court might have been unwilling to revisit Guantánamo, because Elena Kagan, who replaced Justice John Paul Stevens, served as Obama’s Solicitor General working on Guantánamo issues, and would have had to recuse herself, leaving the court, in all likelihood, split 4-4 on any Guantánamo cases. However, as SCOTUSblog noted, Kagan did not recuse herself from two of the cases turned down last Monday, suggesting that the problem is actually that no one amongst the justices wants to step into the role taken by Justice Stevens, who, from 2004 to 2008, “had been the Court’s leader in asserting a strong role for the Justices in overseeing how the law of detention had developed.”

Along with the Obama administration’s capitulation to Republican demands on Guantánamo, the fact that the Supreme Court, under Obama, has also ended up more right-wing than it was under Bush, when it comes to detention issues in the “War on Terror,” appears to be some sort of cruel joke.

How on earth have we ended up in a situation whereby, as SCOTUSblog explained, the poisonous figure of Judge Randolph has been left in a position in which the Supreme Court’s denial of review last Monday “might … count as a personal triumph” for him — and, thereby, a tacit admission that he was correct to regard Boumediene as a “mess” that requires cleaning up? Was Justice Stevens the only reason that the US justice system did not thoroughly endorse arbitrary detention as official policy under George W. Bush?

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.

(Image: Lance Page / t r u t h o u t; Adapted: sunilgarg, kzappaster, ~Brenda-Starr~)

Since May 2009, when President Obama first bowed to Republican pressure on national security issues, and abandoned a plan by White House Counsel Greg Craig to rehouse on the US mainland a couple of cleared prisoners at Guantánamo who were at risk of torture if repatriated, it has been apparent that no principles are sufficiently important to the administration that officials won’t jettison them the moment that critics start howling.

After this first success with the cleared prisoners — blocking entry to the US for the Uighurs, Muslims from China’s Xinjiang province, who had been cleared for release by a US court — Republicans, and, to a lesser extent, dissenters within Obama’s own party, realized that the power to shape national security issues was in their hands, particularly when the magic word “Guantánamo” was invoked.

As a result, when a young Nigerian, apparently recruited in Yemen, tried to blow up a Detroit-bound plane on Christmas Day 2009, and the critics howled that no Yemenis in Guantánamo should be released, the President didn’t point out that this was unacceptable, and was, moreover, a call for him to endorse a policy of “guilt by nationality.” Instead, he immediately capitulated, imposing a moratorium on the release of Yemenis from Guantánamo that still stands 15 months later, and that, single-handedly, undermined the President’s own promise to close the prison.

A similar success for Obama’s critics took place after Attorney General Eric Holder announced on November 13, 2009 that

This image of Khalid Sheikh Mohammed was taken in July 2009 under an agreement with Guantanamo prison camp staff that lets Red Cross delegates photograph detainees and send photos to family members.

Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, on the same day that he announced that five other men would face trials by Military Commission at Guantánamo.

Although this announcement went down well initially, with most of the complaints coming from critics of the Commissions —myself included — who were dismayed that Obama and Holder had brought the much-criticized military trial system back from the dead, a cynical backlash soon started against the proposed federal court trial for the alleged 9/11 co-conspirators. This was orchestrated by Keep America Safe, an organization founded by 9/11 widow Debra Burlingame, rightwing pundit William

Krystol, and Liz Cheney, the daughter of former Vice President Dick Cheney, which might, more appropriately, have been called

“Keep America Afraid.” However, it succeeded in its mission, because, predictably by now, when the critics’ complaints were loud enough, Obama again backed down, effectively shelving the plans, and leaving Holder looking foolish.

Nevertheless, the Attorney General at least maintained some principles. Aware of the significance of the trial of Khalid Sheikh Mohammed and his alleged co-conspirators, Holder told Jane Mayer of the New Yorker last February that he was “determined not to capitulate on the idea of holding a 9/11 trial.” Mayer’s report continued:

“I don’t apologize for what I’ve done,” he told me at one point. “History will show that the decisions we’ve made

are the right ones.” Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as “the defining event of my time as Attorney General.” But, he added, “between now and then I suspect we’re in for some interesting times.”

Those “interesting times” have seen Holder’s boss make no effort to fight back against his critics, so that, by the end of last year

, supporters of Guantánamo in Congress were so emboldened, and so certain that Obama would do nothing to oppose them, that

they inserted provisions into an important military spending bill explicitly prohibiting the administration from bringing Guantánamo prisoners to the US mainland to face a trial — specifically mentioning Khalid Sheikh Mohammed by name, in case anyone missed the point.

When the bill was passed, Obama could have vetoed it and fought to remove the offending provision, or he could, more contentiously, have issued a signing statement refusing to accept it, but predictably he did neither, meaning that Khalid Sheikh Mohammed and his co-accused would either remain in Guantánamo without facing a trial at all, or that the President would

accept that he had been bullied into putting them forward for trial by Military Commission.

Announcing the bullying option on Monday, Eric Holder did not even bother to disguise his disappointment. He began by

explaining that, when he had examined the best option for the trial in 2009, he had done so with an open mind, and had concluded that “the best venue for prosecution was in federal court.” He added, pointedly, “I stand by that decision today,” and then provided a compelling defense of the federal court decision:

[W]e were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators — one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor. We had carefully evaluated the evidence and concluded that we could prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws. We had consulted extensively with the intelligence community and developed detailed plans for handling classified evidence. Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over two hundred years.

Holder then proceeded to condemn Congress for interfering in the decision for political reasons, generously citing the President’s complaint that these “unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security,” but primarily expressing his own dismay far more eloquently, and inadvertently revealing how, in contrast, nothing that relates to Guantánamo is of particular importance to Obama, who has not spoken with conviction on the topic since becoming President:

Decisions about who, where and how to prosecute have always been — and must remain — the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.

Although Holder proceeded to express faith in the Commissions as a system capable of delivering justice, his preference for federal courts was apparent, as he launched into a passionate defense of federal court trials, which was prompted by “a number of unfair, and often unfounded, criticisms.” This was probably a reference to the way in which Republican critics tried to make political capital out of the federal court trial of Ahmed Khalfan Ghailani, the only Guantánamo prisoner brought to the US mainland (in May 2009), whose recent conviction and life sentence was portrayed by critics as a failure, because the judge barred the use of evidence derived through the use of torture (as he is required to do by law), and because the jury threw out all but one of the 285 counts against Ghailani.

In his defense of the federal court system, Holder wrote:

[F]ederal courts have proven to be an unparalleled instrument for bringing terrorists to justice. Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences. There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system.

In conclusion, Holder lamented that the 9/11 case “has been marked by needless controversy since the beginning.” As he proceeded to explain, “the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points,” but should “always [have] been about delivering justice for [the] victims of [9/11], and for their surviving loved ones. Nothing else.”

This is another poor day for justice, in an administration that has been marked by an absence of good news when it comes to dealing appropriately with national security issues. Eric Holder deserves only faint praise overall, because of the way in which he was evidently involved in sheltering Bush administration lawyers from prosecution for their involvement in the “torture memos” of August 2002, and for his failure to oversee the Guantánamo habeas legislation, which has proceeded as aggressively as if Bush was still in power. On the 9/11 trial, however, and through his obvious exasperation with a political climate in which terrorism — when related to Guantánamo — is shamelessly played by political opportunists or seized upon by rightwing ideologues who have whipped themselves up into an unseemly frenzy of hysteria and paranoia, Holder at least continues to express a belief in certain principles, however rmuch he has been obliged to ignore them.

Elsewhere in the administration, and particularly in the actions of Barack Obama, who has consistently failed to provide leadership when it is needed, there has not even been a glimmer of recognition that certain principles have been lost, and that, it seems to me, ought to be a cause for great concern as the cheerleaders for Guantánamo — and for the false thesis that terrorists are warriors who must be tried in war crimes trials — score another victory at Obama’s expense.

Originally published on the website of the Future for 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.

These are meant to be show trials, part of an overarching plan of “exploitation” of prisoners, which includes, besides a misguided attempt by some to gain intelligence data, the inducement of false confessions and the recruitment of informants via torture. The aim behind all this is political: to mobilize the U.S. population for imperialist war adventures abroad, and political repression and economic austerity at home.

Holder claims he wanted civilian trials that would “prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws.” The Attorney General blamed Congress for passing restrictions on bringing Guantanamo prisoners to the United States for making civilian trials inside the United States impossible. Marcy Wheeler has noted that the Congressional restrictions related to the Department of Defense, not the Department of Justice, and there is plenty of reason to believe the Obama administration could have pressed politicians on this issue, but chose not to. (Others see it differently.)

Human rights organizations have responded with dismay, if not outrage. Center for Constitutional Rights, whose attorneys have been active in the legal defense of a number of Guantanamo prisoners, stated, “The announcement underscores the fact that decisions about whether to try detainees in federal court or by military commission are purely political. The decision is clearly driven not by the nature of the alleged offense, or where and when it was committed, but by the unpopularity of the detainee and the political culture in Washington.” CCR also compared the precedent-setting behavior to “Egypt’s apparent plans to use military trials for protesters at Tahir Square.”

Human Rights First spokesperson Daphne Eviatar said, “Decisions on where to prosecute suspected terrorists should be made based on careful legal analysis, not on politics. This purely political decision risks making a second-class justice system a permanent feature U.S. national security policy – a mistake that flies in the face of core American values and would undermine U.S. standing around the world.”

Most organizations stressed the fact that this was an about-face for the Obama administration. Indeed, one of the oldest human rights organizations in the United States, Human Rights Watch, called the decision a “blow to justice.” HRW Executive Director Kenneth Roth said, “The military commissions system is flawed beyond repair. By resurrecting this failed Bush administration idea, President Obama is backtracking dangerously on his reform agenda.”

The National Association of Criminal Defense Lawyers statement concentrated on the faults of the military commissions themselves, headlining their press release, “At Guantanamo, “Detainees Are Presumed Guilty”:

“Despite some cosmetic changes since the Bush-era commissions, the commission rules still permit the government to introduce secret evidence, hearsay and statements obtained through coercion,” said the association’s Executive Director, Norman Reimer. “NACDL maintains that the rules and procedures for these commission trials raise serious questions about the government’s commitment to constitutional principles upon which our country was founded. “

Anthony Romero, Executive Director of the ACLU, echoed this today when he called the military commissions “rife with constitutional and procedural problems,” noting the outstanding cases “are sure to be subject to continuous legal challenges and delays, and their outcomes will not be seen as legitimate.”

The Origins of the Military Commissions

CCR, HRF, HRW, and NACDL are all correct, so far as they go. It is evident to many observers that only peculiar military exigency, backed by facts, could allow for military tribunals, as the Supreme Court’s 2006 Hamden decision made clear. It is a matter of historical record that the Bush-era military commissions policy, adopted by President Barack Obama, was initially pushed by former CIA employees William Barr and David Addington, with the encouragement of former Vice President Dick Cheney, along with other “War Council” participants John Yoo, Defense Department counsel under Donald Rumsfeld, William Haynes, and Bush lawyers Alberto Gonzales and Timothy Flanigan.

At the same time the military commissions proposal was initiated, via a military order by Bush, the Bush administration was stripping detainees of Geneva Conventions protections, as well as implementing a program of torture, with Haynes soliciting the Pentagon’s Joint Personnel Recovery Agency (JPRA) as early as December 2001 for techniques used in the “exploitation” of prisoners.

In a recent article by Jason Leopold and Jeffrey Kaye, it was shown that the JPRA program that was “reverse-engineered” was Survival, Evasion, Resistance, and Escape (SERE) course SV-91, “Special Survival for Special Mission Units,” whose mission was to train U.S. military and intelligence personnel to withstand torture meant to “exploit” them for enemy purposes. Those purposes went far beyond the gathering of intelligence. As then-SERE psychologist Bruce Jessen, who was later to work as a contract psychologist and interrogator for the CIA beginning in 2002, noted in notes for SV-91 written in 1989:

“From the moment you are detained (if some kind of exploitation is your Detainer’s goal) everything your Detainer does will be contrived to bring about these factors: CONTROL, DEPENDENCY, COMPLIANCE AND COOPERATION,” Jessen wrote. “Your detainer will work to take away your sense of control. This will be done mostly by removing external control (i.e., sleep, food, communication, personal routines etc. )…Your detainer wants you to feel ‘EVERYTHING’ is dependent on him, from the smallest detail, (food, sleep, human interaction), to your release or your very life … Your detainer wants you to comply with everything he wishes. He will attempt to make everything from personal comfort to your release unavoidably connected to compliance in your mind.”

Jessen wrote that cooperation is the “end goal” of the detainer, who wants the detainee “to see that [the detainer] has ‘total’ control of you because you are completely dependent on him, and thus you must comply with his wishes. Therefore, it is absolutely inevitable that you must cooperate with him in some way (propaganda, special favors, confession, etc.).”

A former colleague of Dr. Jessen, and along with him a founder of the SV-91 SERE class, former Captain Michael Kearns told Leopold and Kaye:

“What I think is important to note, as an ex-SERE Resistance to Interrogation instructor, is the focus of Jessen’s instruction. It is exploitation, not specifically interrogation. And this is not a picayune issue, because if one were to ‘reverse-engineer’ a course on resistance to exploitation then what one would get is a plan to exploit prisoners, not interrogate them. The CIA/DoD torture program appears to have the same goals as the terrorist organizations or enemy governments for which SV-91 and other SERE courses were created to defend against: the full exploitation of the prisoner in his intelligence, propaganda, or other needs held by the detaining power, such as the recruitment of informers and double agents. Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.”

The Stalinist governments of the USSR and East Europe used to make a great practice of show trials, one of the most famous being the trial of Hungarian Cardinal Mindszenty. Arthur Koestler’s famous book Darkness at Noon is about the show trial and confession of an “old Bolshevik” under Stalin’s regime. Such show trials still occur in many parts of the world, from China and Vietnam, to Indonesia, Burma, Iran, Pakistan, Zimbabwe, and the list could go on and on.

That list now includes the United States, where most recently, former child prisoner Omar Khadr was tried in a military commission, pleading guilty with a coerced confession, after years of torture and imprisonment in solitary confinement, his penalty phase of the military tribunal amounting to a show trial, complete with psychiatric “expert” testimony about Khadr’s supposed propensity for “terrorism.” The result? A 40-year sentence for the young man who never spent a free day as an adult, part of a staged deal with the U.S. military prosecutors, who presumably will release Khadr to Canadian authorities in a year or so, where he will continue to be imprisoned, pending any appeals there. But the penalty “trial” got a lot of press, and the U.S. was able to garner a propaganda “victory.”

Without Accountability, Whither America?

The United States is only a small step away from some kind of dictatorship. This may sound like hyperbole to some, but the lack of a clear and strong opposition to military and intelligence community institutional pressures has driven the Obama administration to the right even of the Bush administration on matters of secrecy and executive power. Proposals for “terrorist” or “national security” courts continue to be seriously considered, while the public uproar over the use of torture on prisoners has died down ever since Barack Obama told his Democratic Party followers not to “look back,” and made clear that accountability for war crimes would not happen on his watch. Meanwhile, tremendous inroads are made on privacy rights, while surveillance of private citizens, strip searches at airports, seizures of personal computers, and gathering of personal data from emails and phone calls are now everyday occurrences.

As a result, Obama has been the active creature of militarist forces within the government, and on point after point, has given way to lobbying by the military and intelligence establishments, themselves beholden to a power elite that holds the economic reins of the country, from oil to finance, in their hands. Obama’s role is most evident in his recent military actions against Libya.

The courts, too, have stepped back from their gesture towards judicial independence under Bush, with the Supreme Court ruling today that it would not hear three Guantánamo detainee cases, appeals on rejected habeas reviews regarding Fawzi Khalid Abdullah Fahad Al Odah, Ghaleb Nassar Al-Bihani and Adham Mohammed Ali Awad. While the cases concerned issues surrounding use of hearsay, other evidentiary standards, the role of international law, and the right to a meaningful challenge to detention, the Court gave no explanation for denial of cert. Courthouse News noted, by the way, that new Justice Elena Kagan “does not appear to have recused herself from consideration of two of the cases because of her prior work as U.S. Solicitor General.”

Meanwhile, some anti-torture activists are trying to pursue accountability the best they can, going after the licensure status of mental health professionals who participated in the Bush torture regime. Complaints against former Guantanamo Chief Psychologist Larry James and CIA contract interrogator James Mitchell have not gotten very far, with their cases dismissed.

Another case against former Major John Leso, a psychologist working for the DoD Behavioral Science Consultation Team at Guantanamo, who in 2002 helped write an interrogation protocol that relied in part on SERE “reverse-engineered” torture techniques, was also dismissed, but according to Raw Story, this Tuesday the Center for Justice and Accountability (CJA) and the New York Civil Liberties Union (NYCLU) will ask the New York Supreme Court to reconsider the decision of the New York State Office of Professional Discipline (OPD) not to investigate the misconduct complaint against Leso.

The issue of the military commissions must be considered in the context of its embedded existence as part of a full-scale exploitation plan upon prisoners, implemented as part of a war policy with strong imperialist ambitions, initiated by the United States in the aftermath of 9/11. The agitation for such a war preceded 9/11. The terrorist attack set lose this militarist policy, whose appurtenances — military tribunals, exploitation of prisoners, psychological warfare, secret prisons, false confessions, experimental torture programs, and unchecked executive power — threaten to end the semblance of democracy in the United States once and for all.

Originally published on Firedoglake.

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com.

Ahmed Ghailani

For those of us seeking a grown-up debate about Guantánamo in the two years since President Obama came into office, the most troubling development has been the retrenchment of Republican opposition to the closure of the prison, backed up by alarming support for the pro-Guantánamo position by members of the President’s own party.

Like a dark magic spell capable of banishing all sensible discourse in an instant, the merest mention of the words “Guantánamo” and “terrorism” in the same sentence is sufficient to send lawmakers into paroxyms of hysteria, and nowhere is this more true than when it comes to proposals to put any of the Guantánamo prisoners on trial for their alleged offenses.

Guantánamo’s supporters are so wedded to the Bush administration’s false and damaging nation that, in the “War on Terror,” terrorists are no longer criminals but are “warriors,” that when Attorney General Eric Holder announced in November 2009 that Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, they raised a cacophonous roar of opposition, bleating that establishing security at the courthouse would be prohibitively expensive, and warning that the trial would lead to a terrorist attack by al-Qaeda.

Last month, emboldened by their success in persuading Obama to shelve the plans for the 9/11 trial, lawmakers followed up by including a provision in a military spending bill prohibiting the transfer of any Guantánamo prisoner to the US mainland for any reason (and explicitly mentioning Khalid Sheikh Mohammed by name), even though it was clearly unconstitutional to do so.

Conveniently ignored by the fearmongers was the rather more mundane reality that, when Ahmed Khalfan Ghailani, a former CIA “ghost prisoner,” and the only Guantánamo detainee to be moved to the US to face a federal court trial before Congress decided to impose unconstitutional demands on the President, was put on trial in New York in October, there was no need for wildly expensive security, and no notion that terrorists would swoop from the skies to attack the courtroom.

Instead, the apologists for Guantánamo immediately changed their approach, blasting Judge Lewis Kaplan for obeying US law and refusing to accept information derived through the use of torture — the name of an allegedly important witness who later testified under dubious circumstances, and whose name was only divulged by Ghailani while he was being tortured in a secret CIA prison.

While this was despicable enough, as it indicated that, so long as the words “Guantánamo” and “terrorism” were uttered together, it ought to be acceptable for a District Court judge to ignore the US anti-torture statute, the critics of federal court trials then proceeded to decry the trial’s conclusion — a guilty verdict on one count of conspiracy in connection with the US embassy bombing in Dar-es-Salaam, Tanzania, in August 1998, along with the dismissal of 284 other charges — even though, as we saw yesterday in the sentence handed down by Judge Kaplan, that single conviction has led to a life sentence without parole.

What is particularly depressing about this topsy-turvy “Alice in Wonderland” world, in which success is portrayed as failure, and no one even blinks in dissent, is that the manufactured hysteria when “Guantánamo” and “terrorism” are mentioned together not only disguises the fact that federal courts have a proven track record of successfully prosecuting terrorism cases (and are, in fact, empowered to deliver punitive sentences on the flimsiest of bases), but also disguises a fundamentally bleak truth about Guantánamo.

The bleak truth is that, in a prison with such a notorious and demonstrable history of torture — particularly in connection with Ghailani, KSM and 12 other “high-value detainees,” as well as dozens of other men tortured in secret CIA prisons, or in proxy facilities in other countries — the presumption ought to be that the government’s assertions about these men are fundamentally unreliable, because torture is unreliable as well as illegal, and should not be taken at face value.

Instead, however, the opposite is true, and Ghaliani, for example, was happily judged to be guilty until proven guilty, by those who will, no doubt, still complain that he received a life senternce on just one count of conspiracy, and not on all of the 285 charges he faced.

With Ghailani’s life sentence, it is time for this cynical nonsense to come to an end. Federal court trials for terrorists work, and opponents should now cease whining, let go of their ideologically misplaced obsession with trying “warriors” in military trials at Guantánamo, and allow the administration to proceed with the federal court trial of Khalid Sheikh Mohammed and his alleged co-conspirators.

Nine years and four months after the 9/11 attacks, the relatives of the victims of that dreadful day deserve justice, and not to be made playthings by cynical lawmakers — and their echo chambers in the right-wing media — who will soon realize that their beloved Military Commissions are fraught with problems, and will, if given the chance, shift their focus so that, in the not too distant future, we will be hearing that some people — like KSM and his co-accused — are so dangerous that they cannot even be put on trial at all.

Originally published on Cageprisoners.

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.

If you think that sounds like something of an exaggeration, consider that the Senate has just passed legislation aimed at making sure that every prisoner currently at Guantánamo will remain there for the next year, and will neither be put on trial nor released, even though President Obama’s Guantánamo Review Task Force, consisting of “more than 60 career professionals, including intelligence analysts, law enforcement agents, and attorneys, drawn from the Department of Justice, Department of Defense, Department of State, Department of Homeland Security, Central Intelligence Agency, Federal Bureau of Investigation, and other agencies within the intelligence community,” concluded last year that 33 of the remaining prisoners should be put on trial, and that 90 others should be released.

In their desire to impinge on the President’s authority, however, lawmakers inserted three politically motivated provisions into the annual defense authorization bill, which was passed by the Senate and the House of Representatives last Wednesday, and whose baleful effects will last for the next 12 months.

The first bans the use of any funds to bring any Guantánamo prisoners to the US mainland — even to face trials. This goes further than laws passed in 2009, when Congress specifically prevented the transfer of prisoners for any reason except to face a trial, and its political motivation can be seen from the wording of a bill passed by the House earlier this month — a  $1.1 trillion appropriations bill — in which it was stated, “None of the funds made available in this or any prior Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions Khalid Sheikh Mohammed or any other detainee who (1) is not a United States citizen or a member of the Armed Forces of the United States; and (2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.”

That particular reference to Khalid Sheikh Mohammed was very deliberate, as the manifestation of a desire on the part of a significant number of lawmakers to prevent any prisoner from being brought to the US mainland to face a trial was motivated by opposition to the plans, announced last November by Attorney General Eric Holder, to bring Mohammed, the alleged mastermind of the 9/11 attacks, and four alleged co-conspirators to New York to face a trial.

This decision has inflamed liberals, of course, but it has also brought forth trenchant criticism from Republicans as well. In an op-ed in the Wall Street Journal, for example, David B. Rivkin Jr. and Lee A. Casey, lawyers who served in the Justice Department under Ronald Reagan and George H.W. Bush, correctly identified the provision as unconstitutional.

Rivkin and Casey began unpromisingly, by stating, “Trying captured al-Qaeda, Taliban, or allied terrorists in United States civilian courts is a bad idea,” and then claimed that the “near-acquittal” of Ahmed Khalfan Ghailani, a former Guantánamo prisoner and CIA “ghost prisoner,” who was convicted in a federal court in New York last month for his involvement in the 1998 African embassy bombings, but only on one of the 285 charges he faced, “proves as much.” At this point, however, their analysis became much more interesting.

“But one bad idea does not excuse another,” they wrote, adding, “Congressional efforts to block future trials by imposing spending restrictions on the president are unconstitutional and should be abandoned.”

They also wrote:

The language forbids the use of government funds to transfer detainees now held at Guantánamo Bay to the United States for any and all purposes. Since federal courts sit only in US territory and because criminal defendants must generally be physically within the court’s jurisdiction for trial, the apparent purpose of this provision is to prevent President Obama from trying these detainees in federal court.

This is a step too far. The president is the chief federal law enforcement officer and prosecutor. Whether, when and where to bring a particular prosecution lies at the very core of his constitutional power. Conditioning federal appropriations so as to force the president to exercise his prosecutorial discretion in accordance with Congress’s wishes rather than his own violates the Constitution’s separation of powers.

This is powerful criticism, and it applies equally to the two other provisons inserted into the bill by Congress.

The first of these bans the use of funds to purchase or construct any facility on the US mainland for housing prisoners currently held at Guantánamo — and is, again, a direct response to the administration’s announcement, last December, that it intended to buy the empty Thomson Correctional Center in Illinois for that very purpose.

The second prevents the President from releasing any prisoner “unless Defense Secretary Robert M. Gates signs off on the safety of doing so,” as the New York Times described it. In earlier reports, it was noted that this provision was designed specifically to prevent the release of any prisoner to countries regarded by lawmakers as dangerous, including Afghanistan, Pakistan and Yemen. Again, this is an unwarranted and unconstitutional assault on the President’s powers, although in this case it only reinforces what is already in existence.

In July, when a cleared Afghan prisoner was released in Spain, I was obliged to conclude that this had only happened because of Congressional opposition to releasing him in his home country, although this has never been mentioned in any media reports, and it is the first time I have seen fit to mention it. On Yemen, however, President Obama is already onside, and one of the major stumbling blocks to closing the prison is his decision, last January, to announce an open-ended moratorium on releasing any Yemeni prisoners — following hysteria about the fact that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, has been recruited in Yemen — even though this, like the newly announced Congressional ban, amounts to guilt by nationality, and even though 58 of the 90 prisoners cleared for release by the Task Force are Yemenis.

The only point at which Congress appears to have stepped back from unconstitutional activities regarding Guantánamo concerns attempts to ban the release of prisoners whose release has been ordered by District Court judges who have granted their habeas corpus petitions. Last year, lawmakers passed a provision allowing them 15 days to review the cases of any prisoners that President Obama wanted to release, and last July, they aroused the wrath of Lt. Col. David Frakt, the military defense attorney for Mohamed Jawad, an Afghan who had just won his habeas petition, when they insisted on reviewing his case before his release. As Lt. Col. Frakt explained:

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 Mohamed Jawad (after the Department of Justice ultimately conceded the habeas corpus petition), the military was required to continue to detain him at Guantánamo at the order of the legislature, Congress. As I explained in Federal District Court, this placed Jawad in the status of “Congressional prisoner,” a status for which there is no Constitutional authority.

He also explained:

It may be that, if the US is contemplating releasing a detainee that it has the lawful basis to detain under the laws of war, that Congress can legitimately condition the expenditure of US funds to effectuate the release on the provision of this notification to Congress, but for those detainees determined to be unlawfully held, this law simply arbitrarily extends their unlawful stay at Guantánamo. 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.

Lawmakers have, presumably, taken Lt. Col. Frakt’s criticism on board, but unfortunately, when it comes to freeing prisoners whose release was ordered by judges after they won their habeas petitions, a further problem is the Obama administration itself.

Although judges in the District Court in Washington D.C. have ruled on 57 habeas corpus petitions since the Supreme Court confirmed, in June 2008, that the prisoners had constitutionally guaranteed habeas rights, and have found in the prisoners’ favor in 38 of those cases, the administration has pushed back, appealing several successful petitions, and endorsing a broader definition of the standard required for ongoing detention, which has found support in the far more conservative D.C. Circuit Court.

This, combined with the evident unwillingness of either President Obama or Attorney General Eric Holder to provide any guidance to the Justice Department lawyers working on the Guantánamo cases — by, for example, conducting any kind of review of cases that should not be challenged in court — is worrying enough, but what is also apparent is that the Obama administration has, from the beginning, regarded the objectivity of the District Court judges as less important than the decisions made by the Guantánamo Review Task Force, which operated in secret, and, essentially, sidelined the courts.

Although this might have been excusable if the Task Force had contented itself with approving prisoners only for release or trial, the final report also contained a recommendation that 48 of the remaining 174 prisoners should continue to be held indefinitely without charge or trial, because “prosecution is not feasible in either federal court or a military commission.”

The Task Force attempted to explain that “the principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainees was tainted,” but its explanations were unconvincing. Behind claims that “the intelligence about them may be accurate and reliable,” even though it was gathered in dubious circumstances, and that, in many cases, “there are no witnesses who are available to testify in any proceedings against them,” lies a blunter truth, as I explained at the time: “that the intelligence, and whatever witness availability there might be, are both tainted by the circumstances under which ‘the gathering of intelligence’ took place — the coercive interrogations, and in some cases the torture, of the prisoners themselves, or of their fellow prisoners.”

To demonstrate this, I returned to the habeas petitions examined by judges in the District Court in Washington D.C., noting:

[T]hese problems have been highlighted again and again by judges, with an objectivity that eluded the Task Force — as, for example, in the cases of Fouad al-Rabiah, a Kuwaiti put forward by President Bush for a trial by military commission, who was freed after a judge ruled that the entire case against him rested on a false narrative that he had come up with after torture and threats, and, to cite just two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan, and Mohammed El-Gharani, a Chadian national, who was just 14 when he was seized in a raid on a mosque in Pakistan. In both cases, they were freed after judges ruled that the government’s witnesses — the men’s fellow prisoners — were irredeemably unreliable, and were, if not subjected to violence, then bribed to produce false statements.

It is, therefore, rather disingenuous of the Task Force to claim that “the principal obstacle to prosecution” for these 48 men “typically did not come from … concerns that the evidence against the detainee[s] was tainted,” when, to be frank, the record is replete with examples proving the opposite.

Nevertheless, President Obama chose to accept the Task Force’s conclusions, and, last week, added to the unconstitutional position taken by Congress regarding cleared prisoners and prisoners recommended for trials, when officials told the Washington Post that they were close to finalizing an executive order that “would formalize indefinite detention without trial for some detainees at the US military prison at Guantánamo Bay, Cuba, but allow those detainees and their lawyers to challenge the basis for continued incarceration.”

Given the realities of the situation, a review process which “would allow detainees to challenge their incarceration periodically, possibly every year,” and to have legal representation, is better than indefinite detention without any review at all, and it is also possible to sympathize with the official who told the Post, “When the review panel puts someone in the category of long-term detention, the 48 people, what happens then? Are they there for the rest of their lives? What’s the review mechanism? How impartial is it? Do they have a chance to contest it? All of that stuff has to be answered. And we have been working on an executive order laying out these elements.”

Even so, looked at as part of the bigger picture, the proposal for the executive order is nothing to celebrate, and is actually only the lesser of two evils, because indefinite detention without charge or trial should never have been contemplated in the first place. Tom Malinowski, the head of the Washington office of Human Rights Watch, was right to tell the Post that there is “a ‘big difference’ between using an executive order, which can be rescinded, to handle a select group of detainees that Obama inherited, and legislating a general indefinite detention scheme,” but it is unacceptable that the administration has so thoroughly sidelined the judges of the District Court in Washington D.C., who have been making their own decisions about whether prisoners should be held or released. Moreover, it is even more disappointing that the news of this imminent executive order — throwing the fate of 48 of the remaining prisoners on the mercy of an unspecified review process — came in the same week that 123 of the other 126 prisoners (all but the three held after trials by Military Commission) were told by Congress that their chances of being tried or released had pretty much evaporated.

As the ninth anniversary of the opening of Guantánamo approaches — and the first anniversary of Obama’s failed deadline for closing the prison — it is sobering indeed to realize that, far from closing Guantánamo and removing this lingering stain on America’s reputation, President Obama is now fulfilling one of Dick Cheney’s great hopes, presiding over a prison in which the overwhelming majority of the remaining 174 prisoners will, in all likelihood, continue to be held indefinitely.

It promises to be a bleak New Year.

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.

Detainees sit around the exercise yard in Camp 4, the facility within Camp Delta at Naval Station Guantanamo Bay, Cuba. Photo by U.S. Army Sgt. Sara Wood

How messed up is American politics? Well, here are a few clues.

Two weeks ago, the House of Representatives passed a $1.1 trillion continuing resolution, which funds the government through to September 30 next year. As The Hill explained, the resolution was needed “because Congress failed to pass any of the 12 regular appropriations bills for 2011, in addition to failing to pass a budget resolution at all for the first time since 1974.” How many people even knew that?

As The Hill also noted, the bill “freezes 2011 discretionary appropriations at the current level, providing $45.9 billion less than President Obama requested for the year.” Funding for the Department of Defense — at $513 billion overall — makes up almost half of the bill’s financial provisions, which “includes $159 billion for the wars in Iraq and Afghanistan, as Obama requested.”

As I reported last week, the bill also includes sections designed to prohibit the President from spending any money to transfer Guantánamo prisoners to the US mainland — a specific prohibition on bringing prisoners to face trials, which mentions Khalid Sheikh Mohammed by name — or to acquire facilities to hold them on US soil. Both of these are aimed directly at intentions announced by the Obama administration a year ago — federal court trials for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, and plans to buy a prison in Illinois as a replacement for Guantánamo.

Such is the indifference to Guantánamo in the mainstream US media that it was difficult to work out who had inserted the sections relating to the prison.

Just before the bill was passed, White House spokesman Reid Cherlin said, “We strongly oppose this provision. Congress should not limit the tools available to the executive branch in bringing terrorists to justice and advancing our national security interests.” Moreover, the day after, Attorney General Eric Holder wrote a letter to Senate leaders, “calling the provision ‘dangerous’ and asking that it be stripped before the Senate votes on the bill.” Holder wrote, “This provision goes well beyond existing law and would unwisely restrict the ability of the Executive branch to prosecute alleged terrorists in Federal courts or military commissions in the United States.”

According to The Hill, the provisions in the bill caught Democrats by surprise. Rep. Jim Moran (D-Va.), a member of the defense appropriations subcommittee, said, “This is a lack of leadership on the part of Obama. I don’t know where the f*** Obama is on this or anything else. They’re AWOL.” According to Moran, “Rep. Jane Harman (D-Calif.), a leading voice on national security issues, and the four top Democrats on the Judiciary Committee found out during the vote on the rule … At one point, the rule governing the bill was hanging by just one vote while Majority Leader Steny Hoyer (D-Md.) and Speaker Nancy Pelosi (D-Calif.) rushed around the floor doing damage control.”

However, according to TPMMuckraker, “sources on both sides of the House Appropriations Committee, which had purview over the legislation,” said that “the bill was written entirely by the Democratic side. It was revealed to Republicans only hours before the vote. No amendments were allowed on the House floor. No Republicans voted for it. And, the committee sources said, the White House would have seen the final package — including the transfer ban — and would have had the chance to object.”

So what’s going on? The answer, it seems clear from further scrutiny of the passage of the bill, is the most dismal sort of horse-trading, required in a deeply polarized Congress to ensure that legislation passes at all. Something of this can be gleaned from the floor statement made by Rep. David R. Obey (D-WI), the outgoing Chairman of the House Committee on Appropriations, as he introduced the bill.

Rep. Obey began with an open assault on Republicans, and their support for maintaining the Bush administration’s tax cuts for the wealthy:

I’m bringing a resolution to the floor that I have minimum high regard for, to say the least. America is facing serious problems. The most depressing is that we have the biggest divide between the haves and the have nots since the Great Depression. Over the last decade, 80% of the growth in our economy has gone to the luckiest 10% out there. Meanwhile, the economy is sputtering along and families are hurting. And what has been Washington’s response? Apparently it is to spend nearly eighty billion dollars over the next two years to give super sized tax cuts to millionaires and another twenty-four billion to give families worth ten million dollars a pass on paying taxes on their good fortunes. This occurs at the same time that Washington politicians are singing pious songs about the need for deficit reduction.

On horse-trading, this was the key passage:

There are at least fifty decisions in this bill that I am flatly opposed to. There are many arguments in this bill that I have lost. But the fact is, sooner or later, if you’re going to be responsible, you have to set aside your first preferences and simply do what is necessary in order to keep the government open so that Congress doesn’t become the laughing stock of the country. The only responsible vote to cast on this proposition is an “aye” vote. I urge support for the resolution, with all of its shortcomings.

The House enacts further restrictions on Guantánamo in the defense authorization bill

Further evidence of the extent of horse-trading required to pass any sort of law can also be seen from reports of the negotiations involved in a second bill passed by the House last week (the annual defense authorization bill), and in negotiations relating to the passage of both the appropriations bill and the defense authorization bill in the Senate.

On Friday, the House of Representatives passed the defense authorization bill by 341 votes to 48, even though, as Politico reported, it prohibits the transfer of prisoners from Guantánamo to the US “for any reason,” “contains language that would effectively ban civilian trials for … prisoners at Guantánamo and place[s] new limits on transfers from Guantánamo to other countries.” Politico also noted, “A total of 42 House Democrats voted no, including some of the best-known liberals … Six Republicans also voted against the bill.”

As Politico also reported:

The defense policy bill had been carefully negotiated by Sens. Carl Levin (D-Mich.), John McCain (R-Ariz.) and Rep. Ike Skelton (D-Mo.) to strip not just the repeal of “don’t ask don’t tell” [DADT], but a host of other controversial items in the bill after it was defeated over concerns about the repeal of “don’t ask don’t tell.”

In terms of reversing legislation against gay people, securing the repeal of DADT is a great triumph, although anti-war activists — myself included — can only conclude that, in practical terms, this great breakthrough does nothing more than allow gay people to die pointlessly, or kill other people pointlessly, in wars that shouldn’t even be taking place.

However, in order to secure the repeal of DADT, huge compromises were needed. As Politico also explained, the bill “came under threat from Sen. Mark Kirk (R-Ill.), who sought to place a hold on the bill in the Senate over detainee transfer language,” and as a result, “Skelton and Rep. Buck McKeon (R-Calif.), the incoming chairman of the House Armed Services Committee, worked together Friday morning to toughen the language, according to McKeon spokesman Josh Holly.”

Skelton then “touted the restrictions [on Guantánamo] as the toughest ever,” which was a fair call, as the language that Skelton and McKeon came up with not only prevents the transfer of any Guantánamo prisoner to the US mainland for any reason, but also empowers lawmakers to prevent the President from releasing prisoners “to any country that has received a detainee and allowed that detainee to return to the battlefield.” Skelton’s full statement is below:

It prohibits the release of detainees into the United States or its territories. It prohibits the transfer or release of detainees into the United States or its territories. It prohibits the use of any DoD funding to build or modify any DoD facility in the United States for the detention of any Guantánamo detainee. This restriction applies not only to Thomson, Ill., but to the whole country. It prohibits the transfer or release of any Guantánamo Bay detainee to any country that has received a detainee and allowed that detainee to return to the battlefield. This is the most thorough and comprehensive set of restrictions ever placed on the transfer and release of detainees. It is substantially stronger than current law, and voting against this bill will have the effect of making it easier to bring detainees into the United States and easier to transfer them to countries that have failed to hold them in the past.

Alarmingly, as TPMMuckraker reported, the provision allowing lawmakers to prevent prisoners from being transferred “to any country that has received a detainee and allowed that detainee to return to the battlefield” includes prohibitions on transfers to Afghanistan, Pakistan and Yemen. This is deeply disturbing because it so clearly refutes the President’s right to release prisoners who were specifically cleared for release by the interagency Guantánamo Review Task Force, which spent a year studying the Guantánamo cases. It also goes much further than the present law, implemented last year, which allows Congress 15 days to review the cases of any prisoner that the administration wants to free — even if those prisoners have had their release ordered by a US court after winning their habeas corpus petitions (a move that was described as “Congressional depravity” by the law professor and former Guantánamo military defense attorney David Frakt, who noted that Congress has “no Constitutional authority” to do so in the cases of prisoners ordered released by the courts).

It is also deeply disturbing because it amounts to nothing less than guilt by nationality, and, in the cases of the 58 Yemenis cleared for release by the Task Force, adds to the unacceptable situation that has already existed since January this year, when President Obama announced a moratorium on any further Yemeni releases, after it was revealed that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had trained in Yemen, and lawmakers responded with unseemly but influential hysteria.

How politics is dictated by savage compromises, and why the Senate may not be immune

The extent of the compromise required to secure the repeal of DADT (and to sacrifice the Guantánamo prisoners) was explicitly spelled out by Rep. Barney Frank (D-Mass.), a liberal who would normally have been expected to vote against Republican-inspired proposals regarding the Guantánamo prisoners. Frank, however, “spoke on the House floor in support of the bill,” and later told Politico that “agreeing to ban detainee transfers was part of a larger House-Senate compromise that also involved passing ‘don’t ask don’t tell.’” Speaking of the detainee transfer ban, Frank said, “I didn’t like that,” but he conceded that “passing the bill to allow gays to serve openly in the military was more important,” and added that “the detainee language would have returned in a spending bill.” He told Politico, “We would have gotten stuck with that anyway.”

Both bills must now pass the Senate, and it is unclear if Eric Holder’s appeals to Senators not to “unwisely restrict the ability of  the Executive branch to prosecute alleged terrorists in Federal courts or military commissions in the United States” — as well as doubts about the wisdom of imposing restrictions on the Executive’s right to release cleared prisoners as it sees fit — will fall on deaf ears.

According to Politico, horse-trading may mean that all of these unacceptable amendments remain, effectively bringing any movement on Guantánamo to a halt for a year — with no trials, and, very probably, not a single prisoner released, even though over half of the remaining prisoners were cleared for release by the Task Force.

In another distressing example of the kind of monstrous compromise needed to pass any kind of law, Sen. Dick Durbin (D-Ill.), described as “[o]ne of the leading supporters of civilian trials for some Guantánamo prisoners and of bringing detainees currently there to the US mainland,” told Politico that “the Senate is likely to concur in a House-passed measure that effectively bans both those options for the rest of this fiscal year.”

On Saturday, Durbin said, “I think that issue has been resolved. I think it’s necessary to include the language. The reason is that we hope at the end of the day … to still work out an agreement and the bureau of prisons so they will buy this Thomson prison which has been sitting vacant for so many years.” Last December, after the Obama administration encountered fierce opposition to its plans to buy the empty Thomson Correctional Center in Illinois to house “detainees currently being held indefinitely at Guantánamo” and also, possibly, to host military commission trials, Durbin “settled on a fallback proposal to have the Justice Department buy the prison solely for use by ordinary federal prisoners.” As Politico explained, “The Obama administration planned to pay $170 million for the prison. The House voted to approve $95 million for the purchase last week as part of a full-year continuing budget resolution. That measure has stalled in the Senate, but Durbin said he still wants funding to buy the prison — at least as a first step.”

“It won’t go through unless that language clearly says Guantánamo detainees cannot be sent there,” Durbin told Politico. “I supported the president’s position on that initially — that issue has been resolved politically, and this bill, the language in it, reflects the political reality.”

“The political reality.” That, in a nutshell, is the problem with Guantánamo. Whether through ferocious and unprincipled opposition to any attempts to close the prison by trying prisoners, freeing them or transferring them to the US mainland, or whether through calibrated negotiations involving trading progress on Guantánamo for progress in other areas — like DADT, for example — the prisoners at Guantánamo have been abandoned.

As the ninth anniversary of the prison’s opening approaches (on January 11, 2011), the latest betrayals in the House and the Senate are ill-timed, and very bad news indeed for the 174 men remaining in the prison, all of whom deserve better than this, be they the 33 men scheduled to face trials, the 48 designated for indefinite detention without charge or trial, or the 90 men cleared for release. Everyone involved should be ashamed that closing Guantánamo — and trying those genuinely accused of involvement in acts of international terrorism — has become politically inconvenient, or a bargaining chip to be traded for something regarded as more important.

As a result, America will enter 2011 with Guantánamo still present as a stain on its reputation, and as a beacon of injustice still beaming its depressing message around the world.

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.

Ahmed Ghailani

To listen to certain Republican critics of last week’s verdict in the federal court trial of the Tanzanian Ahmed Khalfan Ghailani, a former Guantánamo prisoner and a former CIA “ghost prisoner,” you would think that the jury had found him not guilty, and that he had been released onto the streets of New York.

In fact, after deliberating for five days, the jury found him guilty on one count of conspiracy to destroy US property and buildings, which carries a mandatory 20-year sentence, although the judge in his case, Judge Lewis Kaplan, can decide that a life sentence is appropriate.

Why, then, did Representative Peter King (R-NY), who is poised to become the chairman of the House Homeland Security Committee in January, exclaim, “This is a tragic wake-up call to the Obama Administration to immediately abandon its ill-advised plan to try Guantánamo terrorists” in federal civilian courts?

The reason is naked ideology, of a very damaging kind, as Rep. King revealed in the comment that followed. “We must treat them as wartime enemies,” he said, “and try them in military commissions at Guantánamo.”

For Rep. King and his fellow Republicans, who were queuing up to damn President Obama for his imperceptible failure, the naked truth is that they would have been even more dissatisfied if the jury had convicted Ghailani on the other 284 counts on which they found him not guilty, as it would have made it more difficult for them to attempt to justify their obsession with treating Ghailani — and all the other prisoners in Guantánamo — as “warriors” in the “War on Terror” launched by the Bush administration, for whom federal court trials are ideologically unsuitable.

Such is the blinkered obsession of these critics that they actively want information derived from torture to be used in the trials of alleged terrorists, and they blame Judge Kaplan for upholding the law by excluding from the trial the government’s alleged “star witness,” a Tanzanian named Hussein Abebe, whose name was revealed by Ghailani while he was being subjected to torture in a secret prison run by the CIA — part of a network of secret prisons in which he was held for two years and two months, after his capture in Pakistan in July 2004, until his transfer to Guantánamo, with 13 other alleged “high-value detainees,” in September 2006.

To these critics, it is irrelevant that information derived through the use of torture was excluded by Judge Kaplan because such information can never be used in federal court — and because the use of torture is a crime under domestic US law — just as it is irrelevant that Hussein Abebe’s testimony may also have been suspicious, as Marcy Wheeler pointed out in two articles on FireDogLake.

Nor, bizarrely, do they care that experts with deeper knowledge of the Commissions have pointed out that a military judge in a trial by Military Commission would also have excluded evidence derived through the use of torture, or that the Commissions themselves have a dismal record when it comes to successful prosecutions, having secured just five verdicts since their revival nine years ago: three through plea deals (in the cases of David Hicks, Ibrahim al-Qosi and Omar Khadr); one, in the case of Salim Hamdan, a driver for Osama bin Laden, after a trial in which the military jury threw out a charge of conspiracy; and another, in the case of Ali Hamza al-Bahlul, who produced a propaganda video for al-Qaeda, after a one-sided trial in which al-Bahlul refused to mount a defense.

With the exception of al-Bahlul, who is serving a life sentence (although this is being appealed), all these supposed victories have perished under scrutiny: in 2007, Hicks was freed almost immediately, to serve just seven months in Australia; Hamdan received a sentence of five and a half years, but the judge decided it included time already served, and he was a free man after just five months; al-Qosi, a sometime cook for al-Qaeda, is expected to serve two years; and Omar Khadr’s plea deal means he will be freed from Guantánamo in a year, with seven years ahead of him in a Canadian prison.

Also irrelevant to these advocates of torture and bent trials is the fact that federal courts have an enormously successful track record of prosecuting terrorists, and that the fate of Ghailani’s alleged co-conspirators in the 1998 bombings provides a salutary lesson regarding these successes, providing a ringing endorsement of federal court trials for terrorists, and — along the way — also providing a damning repudiation of the extralegal novelties of the “War on Terror.” Rather than being diverted into a network of secret prisons run by the CIA, where torture was making an ill-advised renaissance, Mohamed Rashed Daoud al-’Owhali, Khalfan Khamis Mohamed, Mohamed Sadeek Odeh and Wadih el-Hage were interrogated by FBI officials without the use of torture, were successfully convicted in a federal court in New York in May 2001, and were sentenced to life without parole in October 2001 — when the “War on Terror” had already begun.

All of the above is supposedly irrelevant to critics of the verdict in Ghailani’s trials because these cheerleaders for the Commissions — and for the use of information derived through the use of torture — want to ignore reality and return to the world envisaged by former Vice President Dick Cheney and his legal counsel David Addington in November 2001, when they first revived the Military Commissions, intending that they would be able to launder information derived through torture, and sentence supposed terrorist suspects to death without anything remotely resembling due process.

This is the system which, although still a second-rate system of justice, reserved for foreigners regarded as terrorist suspects, or as “alien unprivileged enemy combatants,” who are not allowed to raise arms against US forces under any circumstances, has been amended over the years, after the Supreme Court ruled it illegal in June 2006, demolishing Cheney’s dream so that information derived through the use of torture is banned, as it is in federal court trials. As a result, the only essential difference between the Commissions and federal court trials is that the military judges in the former can use their discretion to decide whether or not to allow the use of information that may have been derived through coercion rather than torture.

This may have made a difference in Ghailani’s case, but it seems unlikely, given the Commissions’ track record, that it would necessarily have led to a harsher sentence than the one Ghailani will receive after his federal court trial. In addition, it is worth considering that Ghailani’s trial took place with barely a mention of his treatment in secret CIA prisons or in Guantanamo, when the precedents from the Commissions indicate that military defense lawyers may have fought more tenaciously to raise it as an issue.

Once it becomes apparent that critics of the verdict in Ghailani’s trial are actually seeking a return to the lawless fantasy land envisaged by Dick Cheney and David Addington, and believe — contrary to the evidence — that US law is soft and useless, it also becomes apparent that the silence of President Obama and Attorney General Eric Holder in response to these complaints is deeply troubling.

The Obama administration needs to put down those who are insulting US law through the prism of their own warped ideology, or there is no telling where the rot will stop. Fortunately, for now, few critics have rallied behind a small group of other critics — Benjamin Wittes of the Brookings Institution, Jack Goldsmith, former Assistant Attorney General in the Justice Department’s Office of Legal Counsel, and law professor Robert Chesney — who have taken another troubling unconstitutional line, suggesting that Congress should enact legislation to hold terror suspects indefinitely without even bothering to think about putting them on trial.

However, without decisive action in support of US law and the Constitution on the part of the government, it may be that the idea of avoiding trials altogether for terrorist suspects will gain in strength. In this, Wittes, Goldsmith and Chesney may find that they are encouraged, disturbingly, by the Obama administration itself, which has already endorsed indefinite detention without charge or trial for 48 of the remaining 174 prisoners in Guantánamo, on the advice of the interagency Guantánamo Review Task Force, which was established by President Obama last year to review the cases of the remaining prisoners.

Moreover, in its apparent paralysis regarding trials either in federal court or by Military Commission for 34 prisoners (who were recommended for trial by the Task Force), the Obama administration is close to finding that it has enshrined indefinite detention without charge or trial as official US policy unless it acts immediately to put other Guantánamo prisoners on trial in federal court — starting, I suggest, with Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks, whose federal court trial was announced by Eric Holder almost exactly a year ago.

If senior officials believe in the ability of federal courts to try terrorist suspects, they need to find the courage to say so, to say so boldly and with a courage that has been sadly lacking, and to follow through on their beliefs without caving in to criticism from opponents whose entire point of view is fueled by blind vengeance and a thorough disdain for the law.

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.

In this first America, President Obama swept into office issuing executive orders promising to close Guantánamo and to uphold the absolute ban on torture, and also suspended the much-criticized system of trials by Military Commission used by the Bush administration to secure just three contentious convictions in seven years.

In addition, in April 2009 he complied with a court order to release four “torture memos” issued in 2002 and 2005 by lawyers in the Justice Department’s Office of Legal Counsel, which purported to redefine torture so that it could be used by the CIA (in 2002), or broadly upheld that decision (in 2005). As well as confirming the role of the courts in upholding the law, these documents contained important information for those hoping to hold senior Bush administration officials and lawyers accountable for their actions in the “War on Terror.”

The final flourish of this period was the decision to move a Guantánamo prisoner to New York to face a federal court trial, which took place in May 2009. Ahmed Khalfan Ghailani, a Tanzanian seized in Pakistan in July 2004, was held in secret CIA custody for over two years, until he was moved to Guantánamo in September 2006, with 13 other men regarded as “high-value detainees.”

Ghailani’s transfer to face justice in New York for his involvement with the 1998 African embassy bombings was important not only because it confirmed that Guantánamo prisoners could be tried in federal court, rather than by Military Commission, but also because it established a connection with the way in which justice had been pursued before the 9/11 attacks. Ghailani had been indicted for his part in the African embassy bombings in 1998, and three of his alleged co-conspirators had been successfully tried and convicted in federal court in May 2001, prior to receiving life sentences in October 2001. [Ghailani, who was brutally tortured, was convicted by a jury Wednesday on one count of conspiracy in connection with the bombings and acquitted of murder and more than 280 other charges.]

Unfortunately, in the second America, which emerged on the same day as Ghailani’s transfer, the rule of law has, for the most part, given way to political expediency and the blatant obstruction of justice, which have served only to reinforce the hideous novelties introduced by the Bush administration in its “War on Terror,” and to prevent any attempt to secure accountability for those responsible for the administration’s crimes.

This second America began with a major speech on national security in which the gains made by moving Ghailani to New York were offset by a decision to revive the Military Commissions, and also to hold some prisoners in Guantánamo indefinitely without charge or trial, shattering the notion, prevalent until that date, that prisoners would either be released or charged in federal court.

This announcement came just five days after Obama changed his mind about complying with another court order — this one involving the release of photos showing the abuse of prisoners in US custody in Afghanistan and Iraq — and although this decision was, perhaps, justified on the basis that it would inflame anti-American sentiment in both countries, it was later revealed that, around the same time, the President had also capitulated to far less justifiable criticism of a plan hatched by Greg Craig, the White House Counsel.

Craig, who had also been the driving force behind the President’s executive orders when he took office, had been close to resettling two Uighur prisoners at Guantánamo on the US mainland, in order to break a deadlock involving cleared Guantánamo prisoners who could not be repatriated because they faced the risk of torture, and also to send out a clear message to America’s allies that, in closing Guantánamo, the administration was prepared to acknowledge its own mistakes, and was hoping that other countries would therefore help out by taking other cleared prisoners who could not return home.

The Uighurs are Muslims from China’s oppressed Xinjiang province, and the 17 men in Guantánamo at that time were clearly innocent men, who had won their habeas corpus petition in a US court in October 2008, after the Bush administration gave up all pretence that they were “enemy combatants.” However, although Greg Craig had secured support for his plan from Hillary Clinton and defense secretary Robert Gates, Obama quashed it when Republicans got wind of it, leaving the Uighurs scrabbling around for a new home, and making the job of finding new homes for other cleared prisoners more difficult, especially as Republicans — and members of Obama’s own party — followed up on this successful attempt to intimidate the President by passing a law preventing him from bringing any cleared prisoner to the US mainland.

Since then, capitulation to pressure has been the name of the game. Last November, Attorney General Eric Holder announced that the “high-value detainee” Khalid Sheikh Mohammed, and four other HVDs accused of involvement with the 9/11 attacks, would, like Ghailani, face a federal court trial in New York. However, when a Republican-led backlash started, Obama caved in once more, refusing to press the advantage gained by having already moved Ghailani to New York, and freezing into inaction, taking the decision away from Holder about where and how the men would be tried, but refusing to make any decision at all.  Part of the problem was that, on the same day that Holder announced the 9/11 trial, he also announced that five prisoners would face trials by Military Commission, leaving an option open for critics of federal court trials that should have been slammed firmly shut.

By January this year, the hysteria about the proposed 9/11 trial was at its height, and Obama’s inability to fight back meant that, when Umar Farouk Abdulmutallab, a Nigerian, was seized after failing to blow up a plane on Christmas Day, and was discovered to have been recruited in Yemen, the President caved in again. This time around, his critics’ demands were that no Yemenis should be released from Guantánamo. Even though 59 Yemenis had been approved for transfer to Yemen by the Guantánamo Review Task Force, consisting of 60 career officials and lawyers and established by the President to review the cases of all the Guantánamo prisoners, he announced a moratorium on the release of any Yemenis, which is still in place today and shows no sign of coming to an end.

In addition, Obama has done all in his power to ensure that nothing like the release of the “torture memos” in April 2009 will ever happen again. Early this year, he allowed a Justice Department “fixer,” David Margolis, to override the damning conclusion of a four-year internal investigation into the authors of the 2002 memos — John Yoo and Jay S. Bybee — in which Margolis downgraded the report’s conclusion that both men were deliberately guilty of “professional misconduct” with a mild rebuke for having apparently only exercised “poor judgment.”

In the courts, too, Obama has erected a seemingly impenetrable wall to accountability, invoking the little-known “state secrets” doctrine to block any attempt to have Bush-era crimes discussed in court, as, for example, in the case of five men subjected to “extraordinary rendition” and torture, who tried to sue Jeppesen Dataplan, Inc., a Boeing subsidiary responsible for acting as the CIA’s torture travel agent, and expanding this abuse of “state secrets” to defend two shocking innovations of his own: a massive increase in drone killings in Pakistan, and a decision to endorse the assassination of US citizens anywhere in the world, even though both projects appear to be illegal, and have attracted severe international criticism.

In this second America, the loss of the House of Representatives to the Republicans in the mid-term elections appears to have led only to the final confirmation that, on Guantánamo and national security issues, Obama is content to do nothing for the rest of his term in office.

This is in spite of significant developments in the trial of Ahmed Khalfan Ghailani, which has been taking place in a federal court New York for the last month. Ghailani’s trial has demonstrated that the traditional manner of trying terrorist suspects is fully functional — and can operate adequately even with the exclusion of evidence obtained through torture — and a decision is expected from the jury this week.

If the trial leads to a conviction, the result should allow the administration to sweep aside all criticism and proceed with the trial of Khalid Sheikh Mohammed and his four alleged co-conspirators, but as the Washington Post reported on Saturday, Obama administration officials have explained that the five men “will probably remain in military detention without trial for the foreseeable future.” As the Post explained:

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantánamo Bay, Cuba. The latter option would alienate liberal supporters.

This may change, of course, as President Obama has not made an official announcement, but it seems unlikely, as everything else at Guantánamo has ground to a halt. Faced with ferocious opposition to any plans that made it through his wall of compromise and cowardice, Obama has demonstrated that he is content to continue holding the remaining 174 prisoners at Guantánamo on the basis of the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, even though the AUMF perpetuates the false notion that the Guantánamo prisoners are neither prisoners of war, nor criminal suspects, but are still that third category of prisoner invented by the Bush administration: “enemy combatants,” or, as they now are, “alien unprivileged enemy belligerents,” who occupy a unique, and uniquely disturbing position, which, for the majority of the men, is still akin to a legal black hole, despite the fact that they were granted habeas corpus rights by the Supreme Court in June 2008.

Consider the facts: On the trial front, even though the Task Force recommended that 34 of the remaining prisoners should face trials, the administration is currently proceeding with the trial of just one man, Noor Uthman Muhammed, in the Military Commissions (following the scandalous betrayal of justice last month in the case of the former child prisoner Omar Khadr), and in federal court, the officials who spoke to the Washington Post suggested that even a successful outcome in Ghailani’s trial would lead to nothing more than possibly a single “clean case against an unknown.”

As for the rest of the prisoners, there are 48 whom the Task Force recommended should continue to be held indefinitely without charge or trial, and 58 Yemenis who are going nowhere. Excluding Omar Khadr, Ibrahim al-Qosi and Ali Hamza al-Bahlul, the three remaining men convicted in trials by Military Commission, this leaves just 33 prisoners “approved for transfer,” who, if new homes can be found, might be the only prisoners to be released from Guantánamo in the next two years, confirming the extent to which the closure of the prison has become irrelevant to President Obama and the Democrats in general.

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.

From the beginning, there had been doubts about President Obama’s commitment to justice for the prisoners at Guantánamo. Instead of respecting the habeas corpus litigation initiated by the Supreme Court in June 2004, and revived, after unconstitutional interference from Congress, in June 2008, the President established an interagency Task Force to review all the Guantánamo cases, which, essentially, was a secretive, executive-led alternative to court review.

Even worse, however, was the hands-off approach that the President, and his Attorney General Eric Holder, brought to the ongoing habeas litigation. When Obama came to power, 23 Guantánamo prisoners had won their habeas corpus petitions, and just three had lost. This should have been a resounding indication that all was not right with the government’s cases, but instead of ordering a shake-up of the department responsible for sending lawyers to the District Court to be humiliated again and again in cases like those of the Uighurs (innocent Muslims from China’s oppressed Xinjiang province) or Mohammed El-Gharani, a former child prisoner held on the basis of information provided by witnesses that the government itself regarded as unreliable, Obama and Holder did absolutely nothing.

The same people who had worked on the cases for George W. Bush were allowed to keep manufacturing whatever argument they thought might win, leading to further humiliations, as in the case of Alla Ali Bin Ali Ahmed, one of 15 men seized in a guest house in Faisalabad, Pakistan in March 2002. In May, accepting Ali Ahmed’s contention that he was a student, Judge Gladys Kessler, as I explained at the time, “demolished the government’s case against him, painting a disturbing picture of unreliable allegations made by other prisoners who were tortured, coerced, bribed or suffering from mental health issues, and a ‘mosaic’ of intelligence, purporting to rise to the level of evidence, which actually relied, to an intolerable degree, on second- or third-hand hearsay, guilt by association and unsupportable suppositions.”

However, it was in June, when Judge Richard Leon (an appointee of George W. Bush) came to consider the case of Abdul Rahim al-Janko, that new depths were plumbed in the Obama administration’s inability — or unwillingness — to conduct even the vaguest objective analysis of the cases it inherited.

I explained al-Janko’s story in a detailed article at the time, which I recommend for those who want the full sordid tale, but to recap, he had traveled to Afghanistan at the age of 23 after falling out with his father, had stayed in an al-Qaeda-affiliated guest house for five days, and had then (perhaps unwillingly) attended an al-Qaeda-affiliated training camp for 18 days, after which he was tortured as a spy for three months, until he confessed that he had been spying for the US and Israel. He was then held in a Taliban prison in Kandahar for 18 months, which was where he and four other men imprisoned by the Taliban were found in January 2002.

Although all five men — a British citizen, a Tatar and two Saudis, as well as al-Janko — had been imprisoned by the Taliban, they were sent to Guantánamo instead of being freed, and al-Janko was particularly unfortunate, as a search of the house belonging to Mohammed Atef, the military chief of al-Qaeda, who had directed his torture and who was killed in a US bombing raid in November 2001, unearthed a videotape containing his tortured confession, which was wrongly interpreted as a declaration of jihad by Attorney General John Ashcroft.

The five men seized in the Taliban prison in Kandahar were eventually released, but al-Janko was the only one freed under President Obama, and the only one whose unjust detention had to be exposed in a US court before his release was secured.

In ruling last June on al-Janko’s habeas petition, Judge Leon was so appalled that the case had come before him at all that he openly mocked the government for “taking a position that defies common sense” by asking the court to address whether a relationship with al-Qaeda or the Taliban “can be sufficiently vitiated by the passage of time, intervening events, or both.” Concluding that “The answer, of course, is yes,” he then dismantled the government’s case point by point, stating, “To say the least, five days at a guest house in Kabul combined with eighteen days at a training camp does not add up to a longstanding bond of brotherhood,” and adding that al-Janko’s torture “evinces a total evisceration of whatever relationship might have existed!”

Judge Leon also stated that his abandonment in the Taliban prison “is even more definitive proof that any preexisting relationship had been utterly destroyed,” and concluded that an analysis of all these factors “overwhelmingly leads this Court to conclude that the relationship that existed in 2000 — such as it was — no longer existed whatsoever in 2002 when al-Janko was taken into custody.”

Last week, al-Janko, who was freed from Guantánamo and given a new home in a third country last October, sued 26 current and former senior US military officials for damages. Alleging violations of his rights under the US Constitution and the Geneva Conventions, his lawyers stated that he was “the victim of a decade-long Kafkaesque nightmare from which he is just awakening,” adding, “Whether a country provides redress for the people it has wronged in violation of international and US law is a true test of the character of a nation.”

As the Washington Post described it, al-Janko “says that he was urinated on by his American captors, slapped, threatened with loss of fingernails and exposed to sleep deprivation, extreme cold and stress positions.” He also “says that US authorities broke his knee, used police dogs against him and caused kidney damage by failing to treat him for kidney stones.”

Al-Janko undoubtedly has a case, but his chances of securing a meaningful response from the Obama administration — let alone an apology or compensation — must be close to zero, given that the administration’s response to any challenge involving Bush-era crimes, or its own novel developments, such as the proposed extrajudicial executions of US citizens, is to invoke the “state secrets” doctrine, or, in the case of a damning internal report into the “torture memos” of John Yoo and Jay S. Bybee, to secure the services of a compliant Justice Department official (David Margolis), who is skilled in the dark arts of an official whitewash. As Glenn Greenwald explained:

[T]he Obama DOJ — which fought unsuccessfully to keep Janko imprisoned at Guantánamo — has been so consistent in its standards that one need not wait to hear from them to know how they will respond. It’s the same way they’ve responded in similar cases: whatever was done to this person is a State Secret that no court can review; those who are responsible for the abuse do and should enjoy full legal immunity; and, besides, we should all be Looking Forward, Not Backward at “unnecessary battles” like this one.

If that sounds bleak, it’s because it is. With hindsight, shielding the Bush administration’s torturers from accountability for their crimes has always been an important part of Barack Obama’s supposedly pragmatic Presidency, but in recent months, as Obama’s own crimes have been highlighted in his relentless use of drone assassinations in Pakistan (PDF), and his defense of plans to assassinate Anwar al-Awlaki in Yemen, shielding administration officials, past and present, from accountability for wrongdoing has openly become a key policy of the government.

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.