THE BEGINNING OF THE END? OR VICE VERSA?

By William Fisher

Human rights groups are hailing reports that President-elect Barack Obama plans to issue an executive order on his first full day in office directing the closing of the Guantánamo Bay detention camp in Cuba. But they are urging him to provide details on when and how it will be done and what will happen to those now imprisoned there.

In a teleconference today with reporters, Caroline Frederickson, the chief legislative representative of the American Civil Liberties Union (ACLU) said closing GITMO would mean little if detainees were simply moved to some other location. She also said she needed reassurance that the Obama Administration would not propose a system of “preventive detention.”

“It is not enough to simply close Guantanamo or even to suspend the Military Commission trials currently taking place there,” she said. She called on Congress to repeal the Military Commissions Act of 2006, which gave the president authority to detain people, including U.S. citizens, indefinitely without charges or trials.

Deborah Colson of the Law and Security Program of the legal advocacy group Human Rights First (HRF) told us that closing Guantanamo will “show the world we are serious about our values.” But, she added, it “will require embracing time-tested procedures for criminal prosecution of suspected terrorists in our federal courts.”

Closing Guantanamo is unlikely to be completed quickly. One official of the Obama transition team reportedly said it would take several months to transfer some of the remaining 248 prisoners to other countries, decide how to try suspects and deal with the many other legal challenges posed by closing the camp. However, transition officials have said president-elect Obama is committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.

In addition, the incoming administration has reportedly rejected a proposal to seek a new law authorizing indefinite detention inside the United States. The Bush administration had insisted that such a measure was necessary to close the Guantánamo camp and bring some of the detainees to the U.S.

Meanwhile, the fate of a number of GITMO detainees continues to play out in the courts. Today the ACLU filed a petition for habeas corpus in federal court in Washington, challenging the detention of Mohammed Jawad, who has been held at Guantanamo for more than six years. Jawad, now about 23 years old, was captured at the age of 16 or 17 and is one of two Guantánamo prisoners the U.S. is prosecuting for acts allegedly committed when they were juveniles. He is accused of throwing a hand grenade at two U.S. service members and their interpreter in Afghanistan.“It would be a miscarriage of justice for President-elect Obama to continue Mr. Jawad’s unlawful detention in Guantánamo, particularly considering that Mr. Jawad was captured as a teenager and detained based on alleged confessions obtained through torture,” said Hina Shamsi, an ACLU attorney.

“The Bush administration compounded this injustice by using torture-derived evidence to prosecute Mr. Jawad for war crimes in the unconstitutional military commissions. The government’s continued detention and prosecution of Mr. Jawad violates America’s values and the Constitution, as well as this country’s binding obligations under the Geneva Conventions and human rights law,” she said.In September, the military’s prosecutor resigned from the military commissions because he did not believe he could ethically proceed with the case. He told the court there was “no credible evidence or legal basis” to justify Jawad’s detention and prosecution, and that the commission system’s flaws make it impossible for anyone “to harbor the remotest hope that justice is an achievable goal.”

A month later, Army judge Col. Stephen Henley held that evidence collected while Jawad was in U.S. custody could not be admitted in his trial because it had been obtained under duress. Among various forms of abusive treatment, Jawad was a victim of the military’s so-called “frequent flyer” program, in which detainees at Guantánamo were subjected to sleep deprivation for extended periods of time.

In May 2004, a few months after Jawad tried to commit suicide in his cell, prison officials deprived him of sleep for two weeks by moving him 112 times in 14 days – after having been ordered by their commanding general to discontinue this practice.

The government told the judge that Jawad's alleged confessions were the centerpiece of its case against him. “The fact that the government persists in trying to use evidence obtained through torture says everything you need to know about the integrity of its case,” said U.S. Air Force Major David J. R. Frakt, who represents Jawad. The Bush administration is appealing the Guantánamo military judge’s decision to throw out the “tainted” evidence.
In a separate case, the trial of another “child soldier,” Canadian citizen Omar Ahmed Khadr, is scheduled to begin January 26. Khadr was captured by American forces when he was 15, following a four-hour firefight with militants in a village in Afghanistan. He has spent six years in Guantanamo charged with war crimes and providing support to terrorism after allegedly throwing a grenade that killed a U.S. soldier.

But in February of 2008, the Pentagon accidentally released documents that revealed that while Khadr was present during the firefight, there was no evidence that he had thrown the grenade. In fact, military officials had originally reported that another militant had thrown the grenade just before being killed.

HRF’s Deborah Colson told us that Obama’s plan to close GITMO will be further complicated if he “does not make an immediate decision to suspend all military commission proceedings, including the trial of Omar Khadr.”

Among the many complications surrounding the closing of Guantanamo is the question of what to do with detainees the U.S. Government has cleared for release.

In December 2008, the government attempted to halt the cases of approximately 20 detainees the Defense Department had cleared for transfer out of Guantanamo. A few weeks later, a federal court rejected the government’s action. The ruling, from Judge Thomas Hogan of the United States District Court for the District of Columbia, meant that lawyers for the detainees could go forward with attempting to seek their release from detention.

As recognized by the Supreme Court and by District Court Judge Ricardo Urbina in the case involving 17 Chinese Muslims – known as Uighurs -- remaining at Guantánamo, a core facet of the fundamental right of habeas is the ability of a federal court to order release in cases of unlawful detention. Judge Urbina ruled the Uighurs should be released from Guantanamo and admitted into the U.S. The government is appealing that decision.

“An administrative order that says that they are free to go is not relief after seven years of imprisonment,” says Emi MacLean, an attorney with the Center for Constitutional Rights. “These men need to be released from prison, and this relief is long overdue,” she says.

There are approximately 50-60 detainees at Guantánamo who cannot be sent to their home countries for fear of torture or persecution or because of statelessness. These include the 17 Uighurs from China as well as men from Azerbaijan, Algeria, Libya, Palestine, Russia, Syria, Tajikistan, Tunisia, and Uzbekistan.