Terrorism

Guantanamo State of Mind

President Obama should reject the arrogance that made the infamous prison possible.

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In January 2002, the Pentagon began imprisoning men it described as "very hard cases"—"the worst of the worst" terrorists in American custody—at the U.S. Naval Base in Guantanamo Bay, Cuba. During the next seven years it released more than 500 of them. "What's left," Vice President Dick Cheney declared in the final week of the Bush administration, "is the hard core." That was a few days before the Pentagon released half a dozen more.

Unless the Bush administration recklessly loosed hundreds of hardened terrorists on the world, its initial descriptions of the detainees were mistaken. That pattern of error reinforces the argument against allowing the executive branch to wield the 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. More than 90 percent of the 779 men held at Guantanamo were captured not by Americans but by Afghan militiamen, Pakistani security forces, or other parties of dubious reliability, often in anticipation of bounties promised by the U.S. Many detainees were 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 acknowledged that 17 Chinese Muslims captured in 2002 were incorrectly identified as unlawful enemy combatants but said it could not send them back to China because they might be persecuted there. At the same time, it appealed a federal judge's October 2008 order to release them inside the U.S.

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

Between June, when the Supreme Court said Guantanamo detainees could pursue habeas corpus petitions in federal court, and mid-January, the government lost 23 of 26 Gitmo cases. One involved Mohammed el Gharani, a Chadian who was detained by Pakistani forces at a Karachi mosque in 2001, when he was 14. On January 14, U.S. District Judge Richard Leon ordered Gharani's release, finding that the case against him was based almost entirely on the uncorroborated, 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, 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 speak volumes about the fallibility of the executive branch and the need for independent review of its detention decisions. I hope Obama is listening.

Senior Editor Jacob Sullum is a nationally syndicated columnist. © Copyright 2009 by Creators Syndicate Inc.

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12 responses to “Guantanamo State of Mind

  1. A dead on article.

    Guantanamo arose from a government mentality that believed the executive branch could do anything it wanted, and do it well.

  2. Wasn’t the whole point of creating GTMO shortly after the Spanish American War to have a prison where the tradition of the Constitution following the American flag had no effect.

    For the life of me I can’t remember the scandal involving this, but I’m pretty sure it was Teddy Roosevelt.

  3. I guess I should have stated I disagree with the idea on several levels. From the need for a detainment facility that houses “nonmilitary personnel” and creating that need by running around nation building and bombing brownish people.

    (attempt to avoid being flamed)

  4. There is really no way to know what both horns of the “indefinite detention/enhanced interrogation” v. due process for (alleged) illegal combatants really entail. You can’t ever know what benefits might have been realized under indefinite detention/enhanced interrogation, and you can’t know what the costs might have been if we didn’t have it.

    Its kind of a Schrodinger’s Cat dilemma, really.

    If I may mix my metaphors, is there a way to cut the Gordian Knot? While front-loading some kind of screening/due process seems attractive, I’m also not a big fan of trying to introduce due process onto the battlefield or diverting our military into legalistic endeavors.

  5. These cases speak volumes about the fallibility of the executive branch and the need for independent review of its detention decisions. I hope Obama is listening.

    We shall see. I cynically have my doubts about humility emanating from anyone who seeks the presidency.

  6. I’m also not a big fan of trying to introduce due process onto the battlefield or diverting our military into legalistic endeavors.

    I’d expect that the combatants detained by the US or NATO forces have sufficient justification for detention.

    OTOH,

    More than 90 percent of the 779 men held at Guantanamo were captured not by Americans but by Afghan militiamen, Pakistani security forces, or other parties of dubious reliability, …

    indicates that much of what we have been doing is jailing tribal leaders, warlords and other ne’er do well’s enemies and rivals for them.

  7. More than 90 percent of the 779 men held at Guantanamo were captured not by Americans but by Afghan militiamen, Pakistani security forces, or other parties of dubious reliability, …

    If they are not terrorists, return them to those Afghan militiamen or Pakistani security forces.

  8. President Obama should reject the arrogance

    Yeah, don’t hold your breath. I haven’t seen any signs of humility yet, so why start thinking they’ll magically appear?

  9. Those who say you can’t release these GITMO prisoners back to Afghanistan are the same fearmongers who told us Iraq had WMDs and who are now telling us Iran is a threat to our security.

    Everyday the US releases CONVICTED murderers, rapist, bank robbers etc. back into the US population, without a bat of the eye. Certainly we can release UNCONVICTED detainees back to Afghanistan without the sky falling.

  10. No mention of the people released and go back to their terrorist ways? I wonder why? Funny that. Anyhow, closing gtimo is fine. We should probably get out of Afghanistan altogether, but as long as we’re there, the ROE should change. Unless, they are high, high value targets, kill the fuckers if they’re trying to kill our military women and men. They aren’t prisoners of war in any way, so they deserve no such designation.

    Did Jacob, as a good libertarian, believe Barak’s centrist bullshit during the election I wonder?

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