Friday, May 22, 2009

A Tale of Two Tales

By William Fisher

President Barack Obama cautiously minced his way yesterday through a political minefield filled with imminent explosions from human rights advocates, national security hawks, and a Congress terrified by the potential political backlash of any move to bring Guantanamo Bay prisoners to the U.S. for trial or detention.

The President defended his decisions to close the iconic naval base in Cuba, halt “enhanced” interrogation practices, and complete a case-by-case review of Guantanamo detainees to determine how to treat each one.

Obama’s remarks came against the backdrop of a major bipartisan revolt in Congress, which has refused to appropriate funds for the closing of Guantanamo until the president assures members that no terrorists will be “released in our neighborhoods” and presents them with a detailed plan for closing the Caribbean prison facility.

Obama spoke in a setting designed to underline traditional U.S. beliefs in the rule of law: The National Archives, which houses the Declaration of Independence, the Bill of Rights, and the Constitution.

Almost immediately following Obama’s speech, in another Washington venue a few minutes away, former vice president Dick Cheney delivered a speech at the conservative American Enterprise Institute, where he uncompromisingly defended the detention, interrogation and national security policies adopted by the George W. Bush Administration. Cheney criticized the Obama Administration for policy decisions that are making America less safe.

While the Obama speech was light on details, he outlined five categories of Guantanamo detainees his administration is attempting to deal with: those who can be tried in Federal courts; those who have violated the laws of war and should be prosecuted before “improved” Military Commissions; those who have been cleared of wrongdoing ordered released; those who can safely be transferred to other countries; and – most contentiously – those can not be prosecuted in either civilian or military courts but who are deemed to present clear threats to U.S. national security, and thus must remain in custody.

It is particularly the latter category that has caused the Congressional blowback, as well as criticism from both the human rights and conservative communities. Obama said that, unlike his predecessors, his team was attempting to craft a legitimate legal framework for this category of prisoners, including judicial and congressional oversight.

He termed as “irrational” the Congressional and public fear regarding bringing Guantanamo detainees to the U.S. for trial, imprisonment or release.

“This is fodder for 30-second commercials designed to frighten the American people,” he said, vowing never the put the safety of the American people at risk.

The Senate on Wednesday voted 90 to 6 to block funding for the shutdown of Guantanamo and to bar the transfer of detainees to the United States and its territories. The six voting against the measure were all Democrats.

Conservative Senator John Thune, Republican of South Dakota, summed up much of the Congressional opposition to Obama’s funding request. “The American people don’t want these men walking the streets of America’s neighborhoods,” he said, adding, “The American people don’t want these detainees held at a military base or federal prison in their back yard, either.”

But the “not in my backyard” chorus was also joined by leading Congressional Democrats. Senator Harry Reid, the Senate Democratic majority leader from Nevada, vowed that Congress “will never’’ allow detainees from the prison to be released on American soil.

But Michele A. Flournoy, the under secretary of Defense for policy, said “I think there will be some that need to end up in the United States. I think this is a case where we need to ask members of Congress to take a more strategic view.’’

The fear of releasing Guantanamo detainees into the U.S. was stoked Wednesday by Congressional testimony from Robert Mueller, director of the Federal Bureau of Investigation (FBI). He told the House Judiciary Committee he was concerned about Guantanamo detainees being transferred to U.S. prisons.

"The concerns we have about individuals who may support terrorism being in the United States run from concerns about providing financing, radicalizing others," Mueller said, as well as "the potential for individuals undertaking attacks in the United States." He also said there were also potential risks to putting detainees in maximum security prisons.

The reactions from leaders of human rights organizations – with many of whom Obama met earlier this week – was predictable.

Tom Malinowski, Washington advocacy director of Human Rights Watch, said his organization thought that suspects who must be detained for long periods should be tried in the U.S.

"The more we try to create something new, the greater the risk of challenge and defeat," he said. "In the short term, it may be easier to detain potentially dangerous people if you design a system specifically for that purpose. But in the longer term, the risk of having to release those people is greater because the system could collapse."

Michael Ratner, president of the Center for Constitutional Rights,
said, "The president wrapped himself in the Constitution and then proceeded to violate it by announcing he would send people before irredeemably flawed military commissions and seek to create a preventive detention scheme that only serves to move Guantanamo to a new location and give it a new name."

Anthony Romero, executive director of the American Civil Liberties Union, said his organization and others will fight Obama in court, and are angry that he and other Democrats have allowed themselves to fall victim to what critics consider Republican "fear-mongering" about bringing accused terrorists to US soil.

He said, "We welcome President Obama's stated commitment to the Constitution, the rule of law and the unequivocal rejection of torture. But unlike the president, we believe that continuing with the failed military commissions and creating a new system of indefinite detention without charge is inconsistent with the values that he expressed so eloquently at the National Archives today."

“President Obama is absolutely right to emphasize that ignoring our values undermines rather than enhances America’s security,” said Kenneth Roth, executive director of Human Rights Watch. “But allowing detention without trial creates a dangerous loophole in our justice system that mimics the Bush administration’s abusive approach to fighting terrorism.”

Other civil libertarians were equally outspoken.

"The president is going to have to spend political capital; he will have to lean on people and call out the political cowards," said John D. Hutson, a retired Navy admiral and judge advocate general who advised Obama on detention policy during his presidential campaign. "He is going to have to regain the high ground and the initiative. He had the initiative and it slipped away."

Professor Francis A. Boyle of the University of Illinois law school, told us, “There are extremely complicated and important issues of U.S. Constitutional Law, international law, human rights and civil liberties at stake here. And yet Members of Congress are more interested in grand-standing for votes and scare-mongering the American people than resolving them fairly and equitably and in accordance with principle.”

“What needs to be understood by our policymakers is that Guantanamo doesn't make us safer but in fact is counterproductive in fighting terrorism," Prof. Brian Foley of Boston University law school told us.

Opposition to Obama’s plan was strengthened by disclosure of an unreleased Pentagon report that concludes that about one in seven of the 534 prisoners already transferred abroad from the detention center in Guant√°namo Bay, Cuba, has returned to terrorism or militant activity, according to administration officials.
Past Pentagon reports on Guant√°namo recidivism have been met with skepticism from civil liberties groups and criticized for their lack of detail.
In two related developments:

A federal judge ruled Tuesday night that the president can continue to hold some prisoners at Guantanamo Bay indefinitely without them being charged. Judge John Bates curbed the Obama administration's definition of who can be held, but ruled that Congress in the days after Sept. 11, 2001 gave the president the authority to hold anyone involved in planning, aiding or carrying out the terrorist attacks.

An administration official said that for the first time, a Guantanamo detainee is being sent to the U.S. to stand trial in a criminal court. Ahmed Khalfan Ghailani, a Tanzanian captured in Pakistan in 2004, had been indicted by a federal grand jury in New York on allegations that he took part in attacks on two U.S. embassies in Africa in 1998.