Tuesday, October 21, 2008


By William Fisher

Leading human rights groups reacted with outrage today to media reports that the administration of President George W. Bush has decided not to close the iconic prison at the U.S. Naval Base at Guantanamo Bay, Cuba.

Quoting anonymous senior Bush Administration officials, The New York Times reported today that the issue would in effect be “kicked the down the road” to await action by the new president when he takes office in January 2009.

The Times reported that Bush never considered proposals drafted by the State Department and the Pentagon that outlined options for transferring the detainees elsewhere.

According the newspaper, Bush adopted the view of his most hawkish advisers that closing Guantánamo would involve too many legal and political risks to be acceptable, now or any time soon, the officials said.

Civil libertarians were quick to condemn the Administration’s position.

Jameel Jaffer, Director of the National Security Project for the American Civil Liberties Union Foundation (ACLU), told IPS, “The decision to keep the prison open is deeply irresponsible. Hundreds of men have been held without charge and without trial for almost seven years. The administration's renewed commitment to Guantanamo means that these men will be imprisoned for even longer. And as long as the prison remains open, the country's standing in the world will continue to erode.”

He added, “At this point, the government has both a moral and legal obligation to close Guantanamo. Even President Bush has conceded that the prison should be closed. But unfortunately it seems that this administration is simply unwilling to show the leadership that would be required to actually get the job done.”

Jaffer was also critical of the controversial system of justice that exists at GITMO. He told IPS, “The handful of prisoners who have been charged with crimes are being tried in a system that is unfair and unconstitutional. It's a system that allows the government to rely on secret evidence, on hearsay, and on evidence that was elicited through abusive interrogation methods such as waterboarding.”

Jameel Jaffer has been an active participant in cases involving GITMO, the Bush Administration’s “domestic surveillance” program, provisions of the USA Patriot Act, and a number of related legal issues.

Shayana Kadidal, an attorney with the Center for Constitutional Rights (CCR) a legal advocacy organization that has provided attorneys for many of the Guantanamo detainees –expressed equal outrage. He told IPS, “We’ve been saying for two years now that the government’s litigation strategy is to run out the clock on these cases and leave the mess at Guantanamo for the next president to clean up – much like the misadventure in Iraq. At every stage the government has tried to maximize delay, with no discernable endgame to resolve the situation.”

He said that “various inside sources have told reporters for years that there are no more than two dozen men at Gitmo who might be worthy of facing charges. If the government chooses to charge them they should be charged and tried in federal court inside the Untied States. (Of course, this presents a real dilemma for individuals who have faced torture; there is domestic law stating that government conduct that shocks the conscience may render an individual untriable, regardless of whether the government has non-torture evidence it may lawfully rely on.)”

He added, “As to the rest, with narrow exceptions, men who are not going to face charges simply should not be detained. The exceptions relate to people actually captured on a conventional battlefield, which is a tiny fraction of the men at Guantanamo – about 4% overall.”

He predicted that “over 200 of the men still at Guantanamo will be returned to their home countries. The idea that moving prisoners to indefinite detention in Kansas will represent an improvement over Guantanamo is ridiculous.”

Shayana Kadidal is senior managing attorney of the Guantánamo project at the Center for Constitutional Rights and has been at CCR since 2001. In addition to supervising the Guantánamo litigation, he has also worked on the Center's case against the NSA's warrantless surveillance program, (CCR v. Bush), and its challenge to the "material support" statute, (HLP v. Mukasey).

Other legal and human rights organizations have also weighed in on the Guantanamo issue. For example, Human Rights First (HRF) has drafted a report, “How to Close Guantanamo: Blueprint for the Next U.S. Administration.” (http://www.humanrightsfirst.org/pdf/080818-USLS-gitmo-blueprint.pdf), detailing a step-by-step process for closing Guantanamo and dealing responsibly and legally with the detainees.

According to HRF’s International Legal Director, Gabor Rona, “Those who can be tried under the laws of war and other criminal laws should be prosecuted. Those who will not be prosecuted by the U.S. must be released to their home country or a third country where they will not be at risk of ill treatment. They may also be subject to prosecution. But this process cannot take place in a vacuum. It must be part of a larger effort to return the US to practices that respect its international legal obligations under the Geneva Conventions and human rights treaties.”

He told IPS that “This means, at a minimum, abandoning the concept of ‘enemy combatant’, which is unknown in the laws of war and which was created by this Administration to remove detainees from the law. A return to the traditional concepts of combatant and civilian will provide the best of both worlds: the ability to prosecute criminals in the normal course of justice and the right of innocents to get their day in court.”

Since the U.S. began sending prisoners to from Afghanistan to Guantanamo in January 2002, the island prison has become the center of a highly charged chapter in American jurisprudence. U.S. Appeals Courts and the U.S. Supreme Court have ruled against various aspects of the Guantanamo legal regimen. The Supreme Court declared the Bush-constructed Military Commissions unconstitutional. And it ruled that Congress could not block detainees’ right to petition for habeas corpus.

In that landmark decision, Boumediene et al v. Bush, the high court ruled 5-4 that prisoners held as “enemy combatants” at Guantánamo Bay, Cuba can immediately file habeas corpus petitions in U.S. district courts challenging the legality of their confinement.

Legal and human rights advocates have characterized that opinion as “a rebuke to a cornerstone of the Bush administration’s so-called ‘global war on terror’.” They say that by holding unconstitutional the provision of the 2006 Military Commissions Act (MCA) stripping Guantánamo Bay prisoners of their habeas corpus rights, the Supreme Court has stopped the Bush administration from continuing to use the naval base as a legal limbo, where it can imprison people indefinitely without regard for either domestic or international law.

In another case, a highly fractured court ordered that the government establish tribunals to determine whether individuals are in fact “enemy combatants.” That same day the court also decided Rasul v. Bush, recognizing that Guantánamo prisoners were entitled to file petitions for habeas corpus under the terms of the congressional Habeas Corpus Act.

In response, Bush administration lawyers established Combat Status Review Tribunals (CSRTs) — considered by many legal scholars to be kangaroo courts where prisoners are denied lawyers and, in most cases, access to the evidence against them — and Congress passed the Detainee Treatment Act (DTA), which revoked habeas corpus for Guantánamo prisoners, giving them access to U.S. courts only for a cursory review of whether CSRT procedures were followed correctly.

In June 2006 the Supreme Court decided in Hamdan v. Rumsfeld that the DTA’s ban on habeas petitions did not apply to those already filed. The Bush administration, with the complicity of key congressional Democrats, rammed through the Military Commissions Act (MCA), which contained a provision depriving federal courts of jurisdiction over all habeas petitions filed by Guantánamo prisoners.

Hamdan, the Yemeni-born driver for Osama bin Laden who was captured in Afghanistan, became the first GITMO detainee ever to be tried by Military Commission. He was convicted of aiding terrorism but acquitted on a charge of conspiring to commit terrorist attacks including those on Sept. 11. Given credit for years already served, Hamdan could be eligible for release before the end of 2008, though the government has recently claimed that the court over-estimated the time he has served.

Over the years, evidence obtained largely from government records has shown that practices tantamount to torture have been widely and consistently practiced at Guantanamo, in violation of the Geneva Conventions.

The effect of Bush’s decision is to retain a prison that has become a worldwide negative icon for the administration’s fight against terrorism.

The decision also leaves another major foreign policy dilemma for the next president. Both Senators John McCain and Barack Obama have called for closing Guantánamo. Either candidate could reverse Mr. Bush’s policy, but neither has discussed how he would deal with the legal consequences of shutting the prison. The principal issue is where to imprison and/or try the remaining approximately 250 Guantanamo detainees, many of whom have already been declared eligible for release.