Yes, this is change we can believe in.
Barack Obama’s executive order on interrogation stipulates that the US must close its black detention sites, cease using torture in the interrogation of terrorism suspects, stop the process of rendition to countries that torture, and close the Guantanamo detention facility within 12 months.
Taken together, this is a stunning change of policy direction, The new commander in chief is saying the US military and intelligence services must comply in future with human rights treaties such as the Geneva Convention and the Convention Against Torture. You know, the same international law that the Bush administration and the likes of Supreme Court Justice Antonin Scalia used to scoff at.
What is less obvious is just what the US will do with the remaining 245 prisoners still in Guantanamo as the facility begins to wind down its operations. This difficulty explains why Obama is giving the authorities at Guantanamo twelve months to figure out a solution.
Reportedly, Europe is divided on whether and how many former Gitmo inmates to take in. Clearly, criticizing the detention process has been a lot easier than fronting up as part of the solution. Switzerland, Ireland and Portugal have indicated a willingness to take in Guantanamo detainees, while Britain and France are still mulling over the idea. Scandinavian countries are conspicuously not coming forward. Almost all of the possible sanctuary countries appear to want to cherry pick the detainees that do not pose a genuine security risk and/or where insufficient evidence exists to mount a criminal prosecution.
On the upside though, the majority of Guantanamo cases could conceivably fall into that category. When it comes to fully 175 of the 245 current detainees, there is insufficient evidence to mount a criminal case against them. In most cases it seems, the problem is not what they might do if released, but what might be done to them. The large bloc of Yemenis for instance, face a substantial risk of torture (or worse) back home. So they can’t be deported, because that would violate the very Convention Against Torture that Obama has just supported.
The 17 Muslim Uighurs held at Guantanamo pose much the same problem – if sent back to China they would almost certainly be executed. In addition, China has warned developed countries – presumably, including New Zealand – that China would not regard it to be a friendly act if any nation offered refuge to the Uighurs.
In the past, the Bush administration has argued that there were 100 detainees who posed too great a security risk to be released. On past performance, this is almost certainly an exaggeration – it includes the Uighurs who the US government has conceded in court are not enemy combatants. Moreover, in the Boumedienne case, the US Supreme Court upheld habeas corpus, and ruled that even in cases where someone is decreed by executive order to be ‘ dangerous’ this alone cannot justify their indefinite detention. Meaning : the state has to try the people it detains within a reasonable time, or release them – under supervision – somewhere. It cannot detain by mere decree.
In line with this reasoning, US judge Ricardo Urbina ordered the Uighurs to be released last October. Yet this order was stayed by a 2-1 Appeals Court ruling in November, pending further submissions. In her dissent – she felt that Urbina had got the law ‘exactly’ right – Judge Judith Rogers summarized some of the strange, Kafkaesque logic that was being used by the Bush administration to suspend due process rights.
In effect, as she explains here, the Bush government legal team ended up arguing that habeas corpus meant only that people could be released from the status of being imprisoned as enemy combatants, but not from actually being imprisoned !
IMHO, Rogers’ line of reasoning in the Uighurs’ case seems likely to be pursued, with variants, by every Guantanamo detainee against whom the US government does not mount criminal proceedings very, very soon. As she says in her dissent opinion :
Although expressly offered the opportunity by the district court, the government presented no evidence that the [Uighurs] pose a threat to the national security of the United States or the safety of the community or any person.
[Habeas corpus requires that bail be granted, Rogers then argued, unless there are exceptional circumstances.] While a decision ordering the release of a prisoner is under review, the prisoner must — unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court . . . orders otherwise — be released on personal recognizance, with or without surety.
[Several factors, she continued, negate the US government’s opposition to release on bail.] First, as regards the likelihood of success on the merits, the government has abandoned its theory that petitioners can be held as enemy combatants, and the government does not argue that it may indefinitely imprison a person at Guantanamo solely because it deems him “dangerous.”
Instead, the government now makes two arguments: first,that under the separation of powers the decision on whether to admit the petitioners into the United States “rests solely with the political branches. ” Second, that immigration laws preclude a habeas court from ordering the release of an inadmissible alien into the United States. On both points, the government does not show ‘a strong likelihood of success on appeal.’ The first argument misstates the law. In interpreting immigration statutes, the Supreme Court has made clear that, in at least some instances, a habeas court can order an alien released with conditions into the country despite the wish of the Executive to detain him indefinitely.
It is thus both inadequate and untrue to assert that the political branches have “plenary powers over immigration.” The government’s second argument on the merits seems to be that, regarding the detention of terrorist aliens — petitioners are inadmissible because they were members of, or received weapons training from, a terrorist group.
As an initial matter, the government did not proffer evidentiary support for this argument in the district court. Even putting that aside, the argument is at best problematic. As noted, the Supreme Court has held that even inadmissible aliens cannot be held indefinitely under the normal immigration detention statute, and petitioners have been imprisoned for over six years. Additionally the government has made no showing that either the Attorney General or the Deputy Attorney General has “certified” petitioners for detention under the special alien-terrorist provision required by that statute. ….
The government’s newly-minted contention, notwithstanding the Supreme Court’s holding in Boumedienne, is that petitioners’ right to habeas provides “[a]t most . . . a right of release from custody on the basis of their status as asserted enemy combatants” but not actual release from imprisonment. This position “overworks legal fiction [by saying] that one is free when by the commonest of common sense he is bound,”
In other words, if the US does not put the Guantanamo detainees on trial, it needs to release them on bail, with supervision. Or make a special case for them to be classed as terrorist threats, with the evidence to back it up. In all other cases it seems, if the Convention Against Torture rules out deportation to their home countries, the detainees will have to be released into the United States. How ironic. (As Bob Dylan once said, this is bringing it all back home.)
There is still a grey area about whether ‘on trial ‘ means in criminal court with full due process rights – as Candidate Obama advocated during the lection campaign. The now frozen proceedings against 9/11 mastermind Khalid Sheikh Mohammed and his top colleagues were being held in front of a Bush-era military commission – now abolished – and it is unclear just what will happen to the likes of KSM under an Obama administration. Yesterday, Vice president Joe Biden made this not very impressive statement prejudging the case :
“KSM – Khalid Sheikh Mohammed – he’s not going to be let go. He’s going to be found guilty either in a federal trial or a military court martial,” he said. “These, quote, ‘hard cases’ that lie somewhere between being able to establish it [guilt] in a court of law and very strong intelligence information that they should be detained. How they’re going to be handled, whether in a habeas [unlawful detention] system or a national security court, is what’s still being studied. And that’s why the Obama administration asked for a 120-day time out.”
The New Zealand option
Could New Zealand, now that it has its free trade deal done and dusted with China, risk incurring China’s wrath by taking in some of the Uighurs ? The Clark government was gunshy on this question. And not under a National government, one might think. Yet Keith Holyoake, during the 1960s, was a master at offering token support, as a means of fending off a request for a larger contribution. Arguably, if New Zealand took in a few Uighurs at minimal security risk and a major hissy fit from the Chinese, it would win major brownie points with the new US administration – and thus, it could reasonably say “ No, we’ve done our bit’ when President Obama comes a-calling later this year to ask us for more ordinary troops and special forces for the war in Afghanistan. Kiwi Keith would have jumped at that trade-off – but Key probably won’t. He seems to want to be liked by everyone, all the time.
Finally, one enduring urban legend about the detainees does need to be dispelled. in his contribution to the Boumedienne judgement by the US Supreme Court, Justice Scalia credulously claimed that of the Guantanamo detainees released thus far, some 30 of them had already returning to the battlefield. The fascinating Seton Hall research evidence that debunks Scalia’s mythical figure can be found here.
The most reliable figure seems to be one sixth of the figure used by Scalia – five in all, out of the nearly 700 released thus far. Even worse, the terms Scalia was relying upon actually defined “returning to the battlefield” as meaning actions like continuing to speak out in public against the US occupation of Iraq, or talking to the media or going on a demonstration. Hardly surprising activity, after six years of detention and/or torture.
As the Seton Hall study indicates, the one case of a released detainee who subsequently became a suicide bomber in Iraq raises a fresh set of conspiracy theory questions. This man was not released by a judge or by any sort of court order – he was released by the Department of Defense after he had warned them he would go straight back to jihad and kill Americans and after those assessing him had argued against his release. Therefore, was he released by the Defense Department in order to kill Americans, and thus justify the continued existence of the Guantanamo base ? One urban myth breeds another.
Certainly, if the people due to be released were not security threats when they were picked up for detention, they may well be now. As Dahlia Lithwick says in this article on Slate, any recruitment to hostile forces may be due more to the actions of the guards at Guantanamo, than to the efforts of the talent scouts from al Qaeda. As she says :
We also know that among the remaining prisoners at Guantanamo there are several who clearly come under the definition of child soldiers, including the Canadian Omar Khadr who allegedly threw a grenade at an American soldier [thus killing him] and was first taken to Guantanamo when he was 15. Khadr we learned this week allegedly identified, under abusive interrogation, another Canadian, Maher Arar, as a visitor to an al-Qaida safe house in Afghanistan. The problem here is that there is no dispute that Arar was in Canada at the time.
Mohammed Jawad is another prisoner at Gitmo, and like Khadr he was also a child soldier (between 15 and 17; his birth date is unknown) when he threw a grenade and injured U.S. soldiers….Jawad allegedly suffered such brutal abuse and torture, his chief prosecutor resigned and is now a witness for Jawad in his habeas corpus proceeding…[ As writer Glenn Greenwald has reported] the centerpiece of the government case against Jawad is a confession he ” ‘signed’ (with his fingerprint, since he can’t write his name) … and yet, it was written in a language Jawad did not speak or read and was given to him after several days of beatings, druggings, and threats—all while he was likely 15 or 16 years old.”
This brings us to the nearly unthinkable question of what happens to anyone, innocent or guilty, when they have been beaten, humiliated, and held in solitary confinement for almost seven years. One could argue that even Mother Theresa might be inclined to “rejoin the battlefield” upon release from such treatment. Somehow in the repatriation of those who arrived at Gitmo relative innocents, we must now contend with the fact that some will be dangerous as a consequence of our actions, not theirs.
Khadr’s story and photograph can be found here.
How do you repair the life of a child soldier who has been violated in this way ? At least President Obama has begun to stop the procedures that have been perpetuating one aspect of this cycle of injustice. It will also require a compassionate response by those countries who found it so easy and so satisfying to denounce George W. Bush. New Zealand for instance, could make a good start by offering to take in some of the Uighurs.