The Passengers Were “The System”

By William Fisher

In the wake of the failed attempt to blow up a Detroit-bound airliner on Christmas day, legal experts and human rights advocates are pushing back against calls from politicians to halt the planned release of prisoners from Guantanamo Bay to their home country, Yemen.

The would-be bomber, a 23-year-old Nigerian, was disarmed and taken down by passengers and crew of Northwest Airlines flight 253. Now in government custody, he was carrying an explosive device in his underwear. Law enforcement officials believe the bomb was made in Yemen, where an al Qaeda wing has claimed responsibility for the attempted bombing.

The incident triggered calls from several elected officials to abandon the closing of the prison at Guantánamo, which they claimed would be dangerous and premature. Some also suggested specifically that the release of Yemeni prisoners be halted.

But human rights advocates are urging President Obama to reject the use of the incident to further delay the closure of the prison and release of the detainees who are scheduled for release after review of their cases by a high-level Administration task force.

The reaction of the American Civil Liberties Union (ACLU) is representative. Jonathan Hafetz, an ACLU staff attorney, told us, "The principal problem with Guantanamo has been the US government's prolonged detention of individuals without charge. If the government has evidence, it should present it in a court of law, where justice can be done. The prior administration detained people more or less arbitrarily and released them in the same manner, all without judicial review (including the two former Gitmo who were initially linked to the recent bombing attempt). This misguided and illegal practice of detention outside the criminal process -- a process that best preserves our liberty and security -- should end."

A similar view was expressed by the Center for Constitutional Rights (CCR), a legal advocacy group that has mobilized dozens of lawyers to defend Guantanamo detainees. In a statement, CCR said, “We know from the military’s own records that most of the detainees at Guantánamo have no link to terrorism. CIA and military sources have repeatedly told reporters that most detainees ‘don’t have anything to do with’ terrorism, ‘didn't belong there’, and ‘weren't fighting.”

The group added, “It is worth recalling that the two former detainees allegedly linked to Al Qaeda in Yemen were released from Guantánamo by the Bush administration, not set free by court order or after the sort of cautious, formal assessment process that the Task Force is undertaking now, but based on purely political calculations.”

“Halting the repatriation of Yemeni men cleared by the Task Force after months of careful review is unconscionable,” it said.

Legal experts we contacted were also critical of proposals to halt Guantanamo releases.

David Frakt, Professor at Western State University Law School and former successful defense counsel to a Guantanamo detainee, told us, “We can never know with absolute certainty that a person released from Guantanamo will not join a jihadist movement and seek to harm Americans. What we have to focus on is whether we have a lawful basis to detain someone. If they have committed a crime, they should be put on trial. If they have engaged in hostilities against the U.S. not amounting to a crime, they may be held under the laws of war. If there is insufficient evidence to lawfully detain someone, they must be released. It is possible that by holding innocent people for several years in very harsh conditions that we may have turned some detainees against us, but the overwhelming majority of released detainees have shown no interest in violent conflict and have returned home to try to reconstruct their lives in peaceful ways.“

He added, “Those opposed to the closure of Guantanamo will seize upon any reason to delay the release of detainees and will put as many obstacles in President Obama's way as they can come up with. The longer Guantanamo stays open, the more that they can say ‘we told you it wasn't going to be easy’ and the more they can claim that President Obama's policies are basically no different that President Bush's.”

And Brian J. Foley, Visiting Associate Professor at Boston University School of Law, told us, "This seems to be either a false concern used tendentiously by U.S. officials to keep alive their unjustifiable and inhumane policy, or an illogical overreaction based on officials' fear and cowardice. If the government cannot prove that these individuals at Guantanamo are dangerous or complicit in terrorism, then how officials can believe that an attempted attack near Detroit has somehow turned all these people into terrorists makes no sense. Call it National Security State alchemy!”

He added, “Perhaps we should just go ahead and imprison any and all non-criminal citizens, because somewhere someone has tried to commit a crime?"

Republicans lawmakers were quick to use the airliner bomb incident to portray the Obama Administration as “soft on terrorism.”

Rep. Pete Hoekstra of Michigan, who is running for governor of his state, sent out a fundraising letter, criticizing the response of those he called "weak-kneed liberals." He is the ranking member of the House Intelligence Committee.

Speaking on Fox News, Hoekstra argued that the slowness of Obama’s reaction showed terrorism wasn’t high on his agenda. “On many other instances and occasions the president is out front. He’s out front leading very early on a lot of different issues. When it comes to terrorism to the threat to the homeland, the president has decided to stay silent for 72 hours. He needs to explain that, he said. Why this is not a priority? It should be his No. 1 priority.”

A similar line was taken by Rep. Peter King of New York. In a TV appearance, King said, “I'm disappointed it's taken the president 72 hours to even address this issue. Basically nobody, the president, the vice president, the attorney general, nobody except [Homeland Security] Secretary [Janet] Napolitano has come out. And she said yesterday everything worked well. What I hope the president would do is treat this in a bipartisan way, acknowledge that mistakes were made and Promise we'll do all we can to make sure it doesn't happen again."

But criticism of the administration was not by Republicans exclusively. The senior Democrat on the Senate intelligence committee said she wants no more Guantanamo Bay detainees released to Yemen.

“Guantanamo detainees should not be released to Yemen at this time,” said Sen. Dianne Feinstein of California. “It is too unstable.”

Feinstein’s warning came just nine days after the Department of Justice announced the most recent transfer of 12 detainees from Guantanamo Bay to Afghanistan, Yemen and Somaliland. Six of the 12 were transferred to the government of Yemen.

The Obama Administration has said it will continue to release Guantanamo detainees, including those from Yemen. A substantial majority of the detainees remaining at Guantanamo is from Yemen.