Guantanamo State of Mind

President Obama should reject arrogant unilateralism

Jacob Sullum | January 21, 2009

Seven years ago, the Pentagon began imprisoning men it described as "very hard cases," "the worst of the worst" among terrorists in American custody, at the U.S. Naval Base in Guantanamo Bay, Cuba. Since then it has released more than 500 of them. "What's left," Vice President Dick Cheney declared last week, "is the hard core." That was right before the Pentagon released half a dozen more.

Unless the Bush administration recklessly loosed hundreds of hardened terrorists on the world, the president's men evidently were mistaken when they said every detainee belonged in that category. That pattern of error reinforces the argument against allowing the executive branch to wield the kind of unchallengeable authority it asserted at Guantanamo.

As President Obama proceeds with his plan to close the prison, he should recognize that Guantanamo is not so much a place as a state of mind. It's an attitude that says: We know who the bad guys are, and we're not about to let anyone endanger national security by second-guessing us.

The Bush administration manifestly did not know who the bad guys were. Its methods for identifying "unlawful enemy combatants," defined as anyone, anywhere who belonged to or supported the Taliban or Al Qaeda, were sloppy and haphazard.

More than 90 percent of the 779 men held at Guantanamo were captured not by Americans but by Afghan militiamen, Pakistani forces, or other parties of dubious reliability, often in anticipation of bounties the U.S. had promised. Many detainees were either minor hangers-on or entirely innocent, held based on the uncorroborated word of self-interested captors or of prisoners eager to please interrogators who used "enhanced" techniques to extract accusations.

The Pentagon acknowledges that 17 Chinese Muslims it has held since 2002 were incorrectly identified as unlawful enemy combatants but says it cannot send them back to China because they might be persecuted there. At the same time, it has appealed a federal judge's order to release them in the U.S.

Haji Bismullah, one of the men freed over the weekend, fought the Taliban and later served as a regional transportation official in Afghanistan's pro-American government. After members of a rival clan who coveted his position accused him of terrorist connections, he was held at Guantanamo for nearly six years before a military panel, belatedly paying attention to the witnesses who vouched for him, decided he "should no longer be deemed an enemy combatant."

Since the Supreme Court ruled last June that Guantanamo detainees may pursue habeas corpus petitions in federal court, the government has lost 23 of 26 cases. The most recent one involved Mohammed el Gharani, a Chadian who was detained by Pakistani forces at a Karachi mosque in 2001, when he was 14.

Last week U.S. District Judge Richard Leon ordered Gharani's release, finding that the case against him was based almost entirely on the unconfirmed, inconsistent accounts of two prisoners whose reliability the government itself had questioned. Among other things, Gharani was accused of belonging to a London-based Al Qaeda cell in 1998, when he was 11 and living in Saudi Arabia.

In November, Leon ruled that the government did not have enough evidence to detain five Algerians who were arrested in Bosnia in 2001 and accused of intending to fight with the Taliban. He found that the charge was based "exclusively on the information contained in a classified document from an unnamed source."

Leon, a Bush appointee who ruled in 2005 that Guantanamo detainees could not pursue habeas corpus claims, probably was inclined to side with the government. Furthermore, under the standard he applied, the Bush administration only had to show by "a preponderance of the evidence" (a likelihood of more than 50 percent) that the prisoners' detention was appropriate.

These cases therefore speak volumes about the fallibility of the executive branch and the need for independent review of its detention decisions. I hope our new president is listening.

© Copyright 2009 by Creators Syndicate Inc.

Comments

..|1.21.09 @ 8:23AM|#

The U.S. has offered to let many of them go. There are few if any takers. I wonder how many "progressives" would be willing to take them in? How about it, Sean Penn? Got an extra room? Bruce Springsteen? Barbara Boxer?

|1.21.09 @ 9:16AM|#

I've said it before, I'll say it again: send every single one of them to Lowell.

There is a tiny shred of a chance one of them might try something that would hurt my daughter. If they continue to lawlessly hold and torture them, on the other hand, there is a 100% chance she will have to live her life in a police state, a torture state, a Big Brother state.

Ohnoes! Teh progressives aren't cowards like you, ellipsis!

|1.21.09 @ 9:50AM|#

Send them to Crawford, Texas. Maybe some nice, church-going retired couple will take them in.

|1.21.09 @ 9:52AM|#

Besides, if they do have a recidivism problem in Crawford, there's a manly man with a bulge in his flight suit to fix the problem.

What's that? Oh, the bulge was a full diaper. OK, never mind.

|1.21.09 @ 10:12AM|#

If they continue to lawlessly hold and torture them

Err, joe, no one is conducting any kind of enhanced interrogation on these folks, so there is no "continuing" "torture". Just keepin' the record straight.

Transferring them it any kind of detention will be lawless under the standard applied to Gitmo, until they have had the due process that has been demanded for them. And I think that continuing the "lawless detention" somewhere else is exactly what Obama will wind up doing in order to symbolically close Gitmo.

While its awfully brave of you to volunteer your daughter as a tripwire, joe, surely you know that even if every single one of them went on a crime spree in Lowell, the odds that your daughter would be hurt are still quite small. Try something a little less straw-mannish.

|1.21.09 @ 11:06AM|#

"I've said it before, I'll say it again: send every single one of them to Lowell."


It's easy to talk big when you know it won't happen.
I, for one, will be truthful and go on record to say I don't want them anywhere near my kids.

|1.21.09 @ 11:24AM|#

Err, joe, no one is conducting any kind of enhanced interrogation on these folks, so there is no "continuing" "torture". Just keepin' the record straight. And you know this how? What is your security clearance, anyway?

You're a very gullible person, RC.

When the government seizes people, throws them in a black hole without process, and has a record of abusing such people AND of defending their right to seize, disappear, and abuse them, I'm going to err on the side of assuming they're not being held in "Club Fed."

Try something a little less straw-mannish./i>

So, just to be clear, you're accusing me of making up a straw-man argument that releasing them poses a serious threat to public safety, even though that argument is actually, honest-to-god, made all the time, including by you, and by the very first commenter on the thread, and the most recent commenter on the thread.

Yeah, where'd I ever come up with that crazy straw man?

|1.21.09 @ 12:11PM|#

And you know this how? What is your security clearance, anyway?

While I tend to skeptical of claims by the state, joe, I'm pretty confident that no one at Gitmo is being tortured, given the level of scrutiny that has been applied to that facility.

So, what's your evidence that they are being tortured, today?

So, just to be clear, you're accusing me of making up a straw-man argument that releasing them poses a serious threat to public safety,

I make no assertions, straw or otherwise, about the level of threat these people might pose if dumped on the streets of an American city.

I'm merely pointing out that your histrionic offer to take them in Lowell on the grounds that your daughter is unlikely to be harmed by them is a straw man. The same could be said if they opened the doors of the county and municipal lockups. Other people in Lowell matter, too, joe. Try not to be such a drama queen.

|1.21.09 @ 12:19PM|#

While I tend to skeptical of claims by the state, joe, I'm pretty confident that no one at Gitmo is being tortured, given the level of scrutiny that has been applied to that facility.

That's funny, because the International Committee of the Red Cross said they were.

So, what's your evidence that they are being tortured, today?

Actually, they're probably not being tortured today, January 21st, 2009. God Bless America.

I'm merely pointing out that your histrionic offer to take them in Lowell on the grounds that your daughter is unlikely to be harmed by them is a straw man. A straw man? Let me quote the VERY FIRST COMMENT ON THE THREAD:

I wonder how many "progressives" would be willing to take them in? How about it, Sean Penn? Got an extra room? Bruce Springsteen? Barbara Boxer?

I've constructed on straw man: you people really are making this argument.

I'd have to say that the phrase "drama queen" most accurately applies to those of you telling us that we're all going to die if we treat these detainees in a manner consistent with our constitution.

|1.21.09 @ 12:20PM|#

That is, I've constructed no straw man. You people really are, honest to God, making this argument.

JB|1.21.09 @ 12:45PM|#

These individuals held in Guantanamo are prisoners of war. If they have committed war crimes, we can try them for such, otherwise they are held until the end of the war (as has been the standard for the past 200 years).

|1.21.09 @ 12:53PM|#

Alright, so we're releasing them. Why aren't they going back to their countries again?

If it's unsafe for them, why? And if their countries don't want them --- too bad?

I'm just confused.

JB|1.21.09 @ 1:11PM|#

I'll elaborate. These men were captured on the battlefield if Afghanistan. Only war crimes are those over which the US or the UN can claim jurisdiction. Otherwise, any "crime" these men committed can only be prosecuted in the country with territorial jurisdiction.

What charge can we bring against them that we could equally bring against any German, Japanese, North Vietnamese, or Iraqi soldier captured on the battlefield?

None... they fight for either the former Taliban Govt. of Afghanistan or Al Qaeda. As a result, they can be considered prisoner of war to be held until the end of the war against both groups.

NotThatDavid|1.21.09 @ 1:27PM|#

JB, did you actually read the article? Or any articles written in the last two years about what it actually takes to get someone sent to Guantanamo Bay?

More than 90 percent of the 779 men held at Guantanamo were captured not by Americans but by Afghan militiamen, Pakistani forces, or other parties of dubious reliability, often in anticipation of bounties the U.S. had promised. Many detainees were either minor hangers-on or entirely innocent, held based on the uncorroborated word of self-interested captors or of prisoners eager to please interrogators who used "enhanced" techniques to extract accusations.

Going from that to "enemy soldiers captured on the battlefield" requires some combination of ignorance and outright lies.

Stormy Dragon|1.21.09 @ 1:29PM|#

>As President Barack Obama proceeds with his
>plan to close the prison at Guantanamo Bay,
>Cuba

How does announcing the prison will remain open for at least six more months, followed by halting the only (admittedly flawed) process for getting out of the prison constitute a plan to close it?

|1.21.09 @ 1:38PM|#

I still don't understand why they're coming to America...

Is it one of those you-break-it-you-buy-it situations?

|1.21.09 @ 1:52PM|#

Alright, so we're releasing them.

No, we're coming up with a plan to figure out what to do with them. Most likely, some will be released, some will be tried in some sort of venue and cleared, and others will be triedin some sort of venue and be convicted and sentenced.

How does announcing the prison will remain open for at least six more months, followed by halting the only (admittedly flawed) process for getting out of the prison constitute a plan to close it? It doesn't.

What actually happened, though - the President ordering the Pentagon to come up with a plan to close the prison camp - represents an initiative to produce a plan to close it, which is far more than Bush ever did to close it.

Suspending the kangaroo courts and coming up with something better, by itself, tells us nothing either way about closing the camp per se.

JB|1.21.09 @ 1:56PM|#

"...Afghan militiamen, Pakistani forces, or other parties of dubious reliability..."

The article seems to imply we willing take anybody handed over by any of these groups. Seems a waste of resources to have to examine each of these men for terrorist credentials considering, as the article states, some of these men are innocents just handed over for bounty.

Obviously, anybody fitting that case should be treated differently than someone captured by an actual US serviceman.

Douglas Gray|1.21.09 @ 2:12PM|#

One of the reasons we had some success in Iraq as of late, is that the U.S. Military actually tried to understand the psychology of recruitment among the groups opposing us there.

They found that GITMO was a powerful motivating factor to join terrorist groups.

If we are trying to establish the rule of law, we had best practice it ourselves.

|1.21.09 @ 2:27PM|#

Obviously, anybody fitting that case should be treated differently than someone captured by an actual US serviceman.

Another distinction that gets elided is the use of the term "on the battlefield."

Almost none of these captives were overpowered while firing their AKS at American forces during a firefight, or anything close to it. Rather, we're talking about people picked up in raids - people arrested and accused of having done something at some other time.

|1.21.09 @ 8:06PM|#

What SHOULD be done with the Gitmo guests? Should they simply be released? Are they simple criminals, or are they POWs?

|1.21.09 @ 8:09PM|#

Maybe they should be parceled out to various state prisons...

Let them spend ten years in Pelican Bay in northern California; then I will be more sympathetic to their claims of torture.

|1.21.09 @ 9:15PM|#

Almost none of these captives were overpowered while firing their AKS at American forces during a firefight, or anything close to it. Rather, we're talking about people picked up in raids - people arrested and accused of having done something at some other time.

Joe, you forgot to add that they were picked up completely without cause or reason, as well. All just trumped up charges imposed by a bunch of eighteen year old Americans with M16s.

|1.22.09 @ 1:47AM|#

"These individuals held in Guantanamo are prisoners of war"

Per the Bush administration's legal reasoning, they are specifically not "prisoners of war"--an established category, members of which have enumerated rights under the Geneva Conventions. Rather, they are "unlawful combatants"--a class of person created by the Bush administration with the specific intent to deny the jurisdiction of international laws pertaining to prisoners of war. This has been the main argument against the administration's detention policies from the beginning--if they are suspected of crimes against the United States, then they should be granted due process and a speedy trial; if they are members of a foreign military with which the U.S. is in a state of war, then they should be treated as such according to established laws of warfare. The major problem is not so much the particulars of how the detainees are being treated by their captors as the dangers inherent in having the government run a prison that is only subject to a body of law which that government is making up as it goes along.

JB|1.22.09 @ 12:19PM|#

"...if they are members of a foreign military with which the U.S. is in a state of war, then they should be treated as such according to established laws of warfare."

I support this viewpoint, and encompassed with this designation are laws of warfare that allow no POW to be released until the end of the war nor tried for any offense.

|1.23.09 @ 7:22AM|#

Send them to San Fran. They are a sanctuary city aren't they? Newsome should welcome them with open arms.

Seriously, what are we going to do with these people? I don't want them on US soil. How do we know if they are released they won't go back to the battlefields? Everyone thought is would be so easy to close Gitmo. Welcome to reality.

Mark Bahner|1.23.09 @ 10:04PM|#

"I, for one, will be truthful and go on record to say I don't want them anywhere near my kids."

Yeah, I sure don't want to be near any guy who was part of an Al Qaeda cell in London, when he as an 11-year-old in Saudi Arabia.

That's plain spooky.

Mark Bahner|1.23.09 @ 10:19PM|#

"Seriously, what are we going to do with these people? I don't want them on US soil."

Ask them to list as many countries as they can that they'd be willing to go to, in the order that they would choose.

Then offer the countries increasing amounts of money until one country accepts them.

Then give the men some amount, based on how low the amount was that the first country accepted, and how low the country that accepted was on their list.

Mark Bahner|1.23.09 @ 10:22PM|#

"These individuals held in Guantanamo are prisoners of war"

In order for them to be prisoners of war, we'd have to be at war. The U.S. isn't at war.

|1.25.09 @ 3:41AM|#

"I support this viewpoint, and encompassed with this designation are laws of warfare that allow no POW to be released until the end of the war nor tried for any offense."

Not unreasonable.

The thorny issue, of course, is sorting out the actual combatants from those who have been falsely identified as such, a problem when the enemy isn't a regular military force with uniforms and serial numbers.

That, and the difficulty of ending a conflict where we've basically declared war on a concept (terrorism, even if it's limited to specifically Islamist terrorism), rather than a tangible political entity that can formally surrender to us.