By William Fisher
Since the start of George Bush’s war of choice in 2003, an army of private contractors in Iraq has enjoyed virtually total impunity from prosecution. They have been accused of killing Iraqi civilians, participating in the torture of prisoners, and committing countless acts of waste, fraud and abuse.
But the contractors’ get-out-of-jail card may be about to expire.
Under the new Status of Forces Agreement (SOFA) approved by the Iraqi government last week, U.S. contractors will be subject to Iraqi law for the first time. Moreover, some observers believe that Iraq may even be able to hold them legally accountable for offenses allegedly committed before the SOFA was approved.
And, at the other end of the U.S-Iraq equation, after months of seeming inactivity – marked by continuing doubts about whether the U.S. even has legal jurisdiction over its contractors -- the U.S. Department of Justice will finally bring charges against a group of contractor-employed security guards for their involvement in the shooting of 17 Iraqi civilians in Baghdad in September 2007.
The guards are employees of Blackwater Worldwide, the largest and most high-profile player in the massive army of private contractors employed by the U.S. in Iraq.
The complexity of this prosecution is revealed in the likely basis of the charges against the Blackwater employees -- a Reagan-era anti-drug law, even though drugs were not involved in the Blackwater shooting. The Anti-Drug Abuse Act of 1988, passed to help stem the nation's crack epidemic, calls for 30-year prison terms for using machine guns to commit violent crimes of any kind, even where drugs are not involved. Machine guns were. So prosecutors are reportedly reviewing draft indictments for manslaughter and assault.
The Blackwater guards -- decorated military veterans hired to protect U.S. diplomats overseas -- were responding to a car bombing when a shooting erupted at a crowded Baghdad intersection. The guards allegedly opened fire with government-issued machine guns and turret guns mounted on their armored trucks. Blackwater claims its convoy was ambushed by insurgents. But a Pentagon investigation concluded that the guards were unprovoked.
But prosecuting the guards will nevertheless be an uphill battle because it remains unclear whether contractors can be charged in the U.S., or anywhere, for crimes committed overseas, a contention that will certainly be made by defense lawyers. The defendants would need to be charged under a law covering soldiers and military contractors, but Blackwater works for the State Department, not the military. Thus it has yet to be determined whether that law applies to its guards.
Making the case even more complicated is the promise of immunity the State Department reportedly extended to several Blackwater guards in exchange for their sworn statements shortly after the shooting. Prosecutors cannot use these statements to support their case.
Blackwater and other security contractors might well also face prosecution by Iraqi authorities for acts committed during an earlier time when they supposedly had immunity from Iraqi law. In June of 2004, the Coalition Provisional Authority that ran Iraq after the U.S. invasion in 2003 granted contractors’ immunity from prosecution. But the new U.S.-Iraq SOFA does not explicitly prevent Iraqi officials from bringing criminal charges retroactively.
The Bush Administration has pulled out all the stops to conceal the activities of its private army, including an effort by Republicans in Congress to abolish the office of the special inspector-general for Iraq, who is charged with rooting out waste, fraud and abuse committed by contractors and others there.That IG, Stuart Bowen, has done an outstanding job, uncovering billions in misspent, stolen or missing American taxpayer dollars and referring a score of alleged wrongdoers to the Justice Department for possible prosecution.
For a time immediately after the Iraq shootings, the issue sparked interest among Democrats in Congress to enact tougher rules for overseas security contractors. The most comprehensive legislation was introduced last year by Barack Obama, then an Illinois Democratic Senator and now America’s president-elect. The Obama measure would have extended the jurisdiction of U.S. law to cover contractors in Iraq, placed the FBI in charge of investigating their crimes, and required the Defense Department to reveal the size and makeup of its security contractor force and define the boundaries of its activities. Republicans in Congress, along with the White House, opposed the legislation. Then the presidential campaign began and swept away everything in its path, leaving the legislation stillborn.
The Congressional Budget Office estimates that more than $10 billion has been spent on security contractors thus far in 2008 and estimated that about 25,000-30,000 employees of security firms were in Iraq as of early this year. It posits that, if spending for contractors continues at about the current rate, $100 billion will have been paid to military contractors for operations in Iraq.
It revealed that about 20 percent of funding for operations in Iraq has gone to contractors. Currently, it said, there are at least 190,000 contractors in Iraq and neighboring countries.
One such contractor, a Kuwaiti company acting as a subcontractor to the U.S. firm KBR, was accused this week of holding approximately 1,000 men from Bangladesh, India, Nepal and Sri Lanka for one to three months without pay in crowded warehouses near the Baghdad airport waiting to begin the jobs they were brought to Iraq to perform. The jobs evidently never materialized.
Najlaa International Catering Services, the Kuwaiti company that hired them to work in Iraq, agreed to pay the men and repatriate them following a raucous protest they staged last week outside their makeshift shelters.
KBR is a former subsidiary of the Halliburton Corporation, the largest and arguably the most notorious of the American private contractors in Iraq. It is widely accused of multiple instances of waste, fraud and abuse in implementing the wide range of services it carries out for the U.S. military in Iraq.
In a related development, 16 Indiana National Guard soldiers are suing KBR for knowingly exposing them to a toxic chemical in Iraq in 2003. The soldiers, who were providing security for KBR during repairs of a water treatment plant in southern Iraq after the U.S. invasion, claim the site was contaminated by hexavalent chromium, “one of the most potent carcinogens.” It alleges that KBR knew the plant was contaminated but concealed the danger.
U.S.-based contractors working in Iraq have been the subjects of numerous lawsuits brought in American courts. In one such suit, filed last May in Los Angeles federal court, Emad Al-Janabi, a 43-year-old Iraqi blacksmith, alleged he was wrongly imprisoned, beaten and forced from his home by people in U.S. military uniforms and civilian clothing in September 2003. He was released from Abu Ghraib without charge in July 2004.
The defendants are contractors CACI International Inc. and CACI Premier Technology, Inc., of Arlington, Va.; L-3 Communications Titan Corporation, of San Diego, Calif.; and former CACI contractor Steven Stefanowicz, a Los Angeles resident known at Abu Ghraib as “Big Steve.”
The suit charges that the contractors subjected Al-Janabi to physical and mental torture in sessions where the defendants acted as interrogators and translators. It alleges the contractors transported him to a detainee site in a wooden box and covered with a hood; scarred on his face when his eyes were clawed by an interrogator; exposed him to a mock execution of his brother and nephew; hung upside down with his feet chained to the steel slats of a bunk bed until he lost consciousness; and repeatedly deprived of food and sleep and threatened with dogs.
In October 2003, during a surprise inspection of Abu Ghraib, the International Committee of the Red Cross reportedly discovered Mr. Al-Janabi naked, chained and bruised in a cell in the “hard site” of the prison. The lawsuit says he was a so-called “ghost detainee” who was intentionally hidden from the Red Cross on subsequent inspections and held without appearing on the prisoner lists.
The suit noted that CACI provided interrogators used at Abu Ghraib and that L-3 employed all translators used there. Mr. Stefanowicz was linked to Abu Ghraib abuses in military court martial proceedings and was said to have directed low-level U.S. military personnel in detainee interrogations.
Despite scores of similar allegations, the use of private contractors in Iraq has remained a centerpiece of George W. Bush’s opaque and unaccountable government. The reason is partly ideological – the Bushies simply believe the private sector is more competent than the government. But at a more practical level, the U.S. military simply does not have enough personnel to do all the jobs now being done by contractors.
Despite the commendable work of some of these companies – particularly those involved in civil development -- a World War Two-type Truman Commission would already have sent many of their people to the slammer. Now, contractors will be under the legal control of the Iraqis and it will be up to them to see justice done. But, given the fragile state of that country’s judiciary and grave doubts about its respect for the rule of law, who in the world would want to volunteer to work there?
The U.S. has spent $600 million building a sprawling, highly fortified embassy in Baghdad. Its 21 reinforced buildings, located on a 104-acre site along the Tigris River includes 619 blast-resistant apartments, all manner of recreational facilities, plus shops and fast-food restaurants in its own mall-style food court. It is by far the largest and most expensive embassy in the world – roughly the size of Vatican City.
This monument to W’s war of choice currently employs some 5,500 Americans and Iraqis -- leaving folks like Secretary of State-designate Hillary Clinton with a huge question: Absent private contractors, who will protect, supply and service these thousands of civilians?
Answer: Blackwater, with which the State Department recently signed yet another multi-million dollar contract extension.
Your tax dollars at work. Again.
Sunday, December 07, 2008
Friday, December 05, 2008
END OF THE WILD WILD WEST?
By William Fisher
The virtually total impunity from prosecution accorded to private contractors in Iraq may be coming to an end.
Under the new Status of Forces Agreement (SOFA) approved by the Iraqi government last week, U.S. contractors will be subject to Iraqi law for the first time. Moreover, some observers believe that Iraq may be able to hold them legally accountable for offenses allegedly committed even before the SOFA was approved.
And, at the other end of the U.S-Iraq equation, after months of seeming inactivity – marked by continuing doubts about whether the U.S. even has legal jurisdiction over the contractors -- the U.S. Department of Justice (DOJ) may soon bring charges against three to six contractor-employed security guards for their involvement in the shooting of 17 Iraqi civilians in Baghdad in September 2007.
The guards are employees of Blackwater Worldwide, the largest and most high-profile player in the massive army of private contractors employed by the U.S. in Iraq
American media is reporting that charges against the Blackwater employees may be based on a Reagan-era anti-drug law, even though drugs were not involved in the Blackwater shooting. The Anti-Drug Abuse Act of 1988, passed to help stem the nation's crack epidemic, calls for 30-year prison terms for using machine guns to commit violent crimes of any kind, even where drugs are not involved. Prosecutors are reportedly reviewing draft indictments for manslaughter and assault.
The Blackwater guards –decorated military veterans hired to protect U.S. diplomats overseas -- were responding to a car bombing when a shooting erupted at a crowded Baghdad intersection. The guards allegedly opened fire with government-issued machine guns and turret guns mounted on their armored trucks. Blackwater claims its convoy was ambushed by insurgents. Eyewitnesses say the guards were unprovoked.
But prosecuting the guards will be an uphill battle because it remains unclear whether contractors can be charged in the U.S., or anywhere, for crimes committed overseas. They would need to be charged under a law covering soldiers and military contractors, but Blackwater works for the State Department, not the military. Thus it remains to be determined whether that law applies to its guards.
Making the case even more complicated is the promise of immunity the State Department reportedly extended to several Blackwater guards in exchange for their sworn statements shortly after the shooting. Prosecutors cannot use these statements to support their case.
Blackwater and other security contractors might well also face prosecution by Iraqi authorities for acts committed during an earlier time when they supposedly had immunity from Iraqi law. In June of 2004, the Coalition Provisional Authority that ran Iraq after the U.S. invasion in 2003 granted contractors’ immunity from prosecution. But the new U.S.-Iraq SOFA does not explicitly prevent Iraqi officials from bringing criminal charges retroactively.
The Blackwater shooting of Iraqi civilians has sparked interest among Democrats in Congress to enact tougher rules for overseas security contractors. The most comprehensive legislation was introduced last year by Barack Obama, then an Illinois Democratic Senator and now America’s president-elect. The Obama measure would have extended the jurisdiction of U.S. law to cover contractors in Iraq, placed the FBI in charge of investigating their crimes, and required the Defense Department to reveal the size and makeup of its security contractor force and define the boundaries of its activities.
Republicans in Congress, along with the White House, have consistently opposed such legislation.
The Congressional Budget Office estimates that more than $10 billion has been spent on security contractors thus far in 2008 and estimated that about 25,000-30,000 employees of security firms were in Iraq as of early this year. It estimates that, if spending for contractors continues at about the current rate, $100 billion will have been paid to military contractors for operations in Iraq.
It revealed that about 20 percent of funding for operations in Iraq has gone to contractors. Currently, it said, there are at least 190,000 contractors in Iraq and neighboring countries.
Craig Jennings, an analyst for OMB Watch, a private government watchdog group, told us, "I think advocates of unaccountable privatization are beginning to reap what they have sown: defending privatization of warmaking on such an enormous scale is becoming tenuous. It's hard to paint a picture of contractors providing taxpayers value when so many instances of contractor misconduct have found their way into the public's consciousness."
One such contractor, a Kuwaiti company acting as a subcontractor to the U.S. firm KBR, was accused this week of holding approximately 1,000 men from Bangladesh, India, Nepal and Sri Lanka for one to three months without pay in crowded warehouses near the Baghdad airport waiting to begin the jobs they were brought to Iraq to perform. The jobs evidently never materialized.
Najlaa International Catering Services, the Kuwaiti company that hired them to work in Iraq, agreed to pay the men and repatriate them following their raucous protest last week outside the warehouses.
KBR is a former subsidiary of the Halliburton Corporation, the largest and arguably the most notorious of the American private contractors in Iraq. It is widely accused of multiple instances of waste, fraud and abuse in implementing the wide range of services it carries out for the U.S. military in Iraq.
In a related development, 16 Indiana National Guard soldiers are suing KBR for knowingly exposing them to a toxic chemical in Iraq in 2003. The soldiers, who were providing security for KBR during repairs of a water treatment plant in southern Iraq after the U.S. invasion, claim the site was contaminated by hexavalent chromium, “one of the most potent carcinogens.” It alleges that KBR knew the plant was contaminated but concealed the danger.
U.S.-based contractors working in Iraq have been the subjects of numerous lawsuits brought in American courts. In one such suit, filed last May in Los Angeles federal court, Emad Al-Janabi, a 43-year-old Iraqi blacksmith, alleged he was wrongly imprisoned, beaten and forced from his home by people in U.S. military uniforms and civilian clothing in September 2003. He was released from Abu Ghraib without charge in July 2004.
The defendants are contractors CACI International Inc. and CACI Premier Technology, Inc., of Arlington, Va.; L-3 Communications Titan Corporation, of San Diego, Calif.; and former CACI contractor Steven Stefanowicz, a Los Angeles resident known at Abu Ghraib as “Big Steve.”
The suit charges that the contractors subjected Al-Janabi to physical and mental torture in sessions where the defendants acted as interrogators and translators. It alleges the contractors transported him to a detainee site in a wooden box and covered with a hood; scarred on his face when his eyes were clawed by an interrogator; exposed him to a mock execution of his brother and nephew; hung upside down with his feet chained to the steel slats of a bunk bed until he lost consciousness; and repeatedly deprived of food and sleep and threatened with dogs.
In October 2003, during a surprise inspection of Abu Ghraib, the International Committee of the Red Cross reportedly discovered Mr. Al-Janabi naked, chained and bruised in a cell in the “hard site” of the prison. The lawsuit says he was a so-called “ghost detainee” who was intentionally hidden from the Red Cross on subsequent inspections and held without appearing on the prisoner lists.
The suit noted that CACI provided interrogators used at Abu Ghraib and that L-3 employed all translators used there. Mr. Stefanowicz was linked to Abu Ghraib abuses in military court martial proceedings and was said to have directed low-level U.S. military personnel in detainee interrogations.
The virtually total impunity from prosecution accorded to private contractors in Iraq may be coming to an end.
Under the new Status of Forces Agreement (SOFA) approved by the Iraqi government last week, U.S. contractors will be subject to Iraqi law for the first time. Moreover, some observers believe that Iraq may be able to hold them legally accountable for offenses allegedly committed even before the SOFA was approved.
And, at the other end of the U.S-Iraq equation, after months of seeming inactivity – marked by continuing doubts about whether the U.S. even has legal jurisdiction over the contractors -- the U.S. Department of Justice (DOJ) may soon bring charges against three to six contractor-employed security guards for their involvement in the shooting of 17 Iraqi civilians in Baghdad in September 2007.
The guards are employees of Blackwater Worldwide, the largest and most high-profile player in the massive army of private contractors employed by the U.S. in Iraq
American media is reporting that charges against the Blackwater employees may be based on a Reagan-era anti-drug law, even though drugs were not involved in the Blackwater shooting. The Anti-Drug Abuse Act of 1988, passed to help stem the nation's crack epidemic, calls for 30-year prison terms for using machine guns to commit violent crimes of any kind, even where drugs are not involved. Prosecutors are reportedly reviewing draft indictments for manslaughter and assault.
The Blackwater guards –decorated military veterans hired to protect U.S. diplomats overseas -- were responding to a car bombing when a shooting erupted at a crowded Baghdad intersection. The guards allegedly opened fire with government-issued machine guns and turret guns mounted on their armored trucks. Blackwater claims its convoy was ambushed by insurgents. Eyewitnesses say the guards were unprovoked.
But prosecuting the guards will be an uphill battle because it remains unclear whether contractors can be charged in the U.S., or anywhere, for crimes committed overseas. They would need to be charged under a law covering soldiers and military contractors, but Blackwater works for the State Department, not the military. Thus it remains to be determined whether that law applies to its guards.
Making the case even more complicated is the promise of immunity the State Department reportedly extended to several Blackwater guards in exchange for their sworn statements shortly after the shooting. Prosecutors cannot use these statements to support their case.
Blackwater and other security contractors might well also face prosecution by Iraqi authorities for acts committed during an earlier time when they supposedly had immunity from Iraqi law. In June of 2004, the Coalition Provisional Authority that ran Iraq after the U.S. invasion in 2003 granted contractors’ immunity from prosecution. But the new U.S.-Iraq SOFA does not explicitly prevent Iraqi officials from bringing criminal charges retroactively.
The Blackwater shooting of Iraqi civilians has sparked interest among Democrats in Congress to enact tougher rules for overseas security contractors. The most comprehensive legislation was introduced last year by Barack Obama, then an Illinois Democratic Senator and now America’s president-elect. The Obama measure would have extended the jurisdiction of U.S. law to cover contractors in Iraq, placed the FBI in charge of investigating their crimes, and required the Defense Department to reveal the size and makeup of its security contractor force and define the boundaries of its activities.
Republicans in Congress, along with the White House, have consistently opposed such legislation.
The Congressional Budget Office estimates that more than $10 billion has been spent on security contractors thus far in 2008 and estimated that about 25,000-30,000 employees of security firms were in Iraq as of early this year. It estimates that, if spending for contractors continues at about the current rate, $100 billion will have been paid to military contractors for operations in Iraq.
It revealed that about 20 percent of funding for operations in Iraq has gone to contractors. Currently, it said, there are at least 190,000 contractors in Iraq and neighboring countries.
Craig Jennings, an analyst for OMB Watch, a private government watchdog group, told us, "I think advocates of unaccountable privatization are beginning to reap what they have sown: defending privatization of warmaking on such an enormous scale is becoming tenuous. It's hard to paint a picture of contractors providing taxpayers value when so many instances of contractor misconduct have found their way into the public's consciousness."
One such contractor, a Kuwaiti company acting as a subcontractor to the U.S. firm KBR, was accused this week of holding approximately 1,000 men from Bangladesh, India, Nepal and Sri Lanka for one to three months without pay in crowded warehouses near the Baghdad airport waiting to begin the jobs they were brought to Iraq to perform. The jobs evidently never materialized.
Najlaa International Catering Services, the Kuwaiti company that hired them to work in Iraq, agreed to pay the men and repatriate them following their raucous protest last week outside the warehouses.
KBR is a former subsidiary of the Halliburton Corporation, the largest and arguably the most notorious of the American private contractors in Iraq. It is widely accused of multiple instances of waste, fraud and abuse in implementing the wide range of services it carries out for the U.S. military in Iraq.
In a related development, 16 Indiana National Guard soldiers are suing KBR for knowingly exposing them to a toxic chemical in Iraq in 2003. The soldiers, who were providing security for KBR during repairs of a water treatment plant in southern Iraq after the U.S. invasion, claim the site was contaminated by hexavalent chromium, “one of the most potent carcinogens.” It alleges that KBR knew the plant was contaminated but concealed the danger.
U.S.-based contractors working in Iraq have been the subjects of numerous lawsuits brought in American courts. In one such suit, filed last May in Los Angeles federal court, Emad Al-Janabi, a 43-year-old Iraqi blacksmith, alleged he was wrongly imprisoned, beaten and forced from his home by people in U.S. military uniforms and civilian clothing in September 2003. He was released from Abu Ghraib without charge in July 2004.
The defendants are contractors CACI International Inc. and CACI Premier Technology, Inc., of Arlington, Va.; L-3 Communications Titan Corporation, of San Diego, Calif.; and former CACI contractor Steven Stefanowicz, a Los Angeles resident known at Abu Ghraib as “Big Steve.”
The suit charges that the contractors subjected Al-Janabi to physical and mental torture in sessions where the defendants acted as interrogators and translators. It alleges the contractors transported him to a detainee site in a wooden box and covered with a hood; scarred on his face when his eyes were clawed by an interrogator; exposed him to a mock execution of his brother and nephew; hung upside down with his feet chained to the steel slats of a bunk bed until he lost consciousness; and repeatedly deprived of food and sleep and threatened with dogs.
In October 2003, during a surprise inspection of Abu Ghraib, the International Committee of the Red Cross reportedly discovered Mr. Al-Janabi naked, chained and bruised in a cell in the “hard site” of the prison. The lawsuit says he was a so-called “ghost detainee” who was intentionally hidden from the Red Cross on subsequent inspections and held without appearing on the prisoner lists.
The suit noted that CACI provided interrogators used at Abu Ghraib and that L-3 employed all translators used there. Mr. Stefanowicz was linked to Abu Ghraib abuses in military court martial proceedings and was said to have directed low-level U.S. military personnel in detainee interrogations.
Wednesday, December 03, 2008
Retired Officers Urge Obama to Erase the "Stain of Torture"
By William Fisher
As a group of retired military leaders prepared to urge U.S. President-elect Barack Obama to quickly put an end to the harsh interrogation practices inflicted on security prisoners, a new United Nations report charged that Iraqi authorities were committing “grave human rights violations” in their treatment of thousands of detainees.
"Grave human rights violations ... remain unaddressed," the UN report said. It cited "ongoing widespread ill-treatment and torture of detainees by Iraqi law enforcement authorities, amid pervasive impunity of current and past human rights abuses."
The UN report cast doubt on whether Iraq will be prepared to professionally manage control over thousands of security detainees now in U.S. custody under a new security pact that would end the U.S. mission here by 2012. Approved by Iraq's parliament last week, the agreement mandates that American forces transfer to Iraqi custody all detainees believed to be a major threat and to release the rest "in a safe and orderly manner."
As an example, the UN report said that 123 men crammed had been into a single 540-square-foot cell — about the size of a studio apartment. It urged the Iraqi government to speed up legal reforms and strengthen the judicial system as it asserts more control over its own affairs. The report also renewed concern about the U.S. detention of suspects for prolonged periods without judicial review of their cases.
The U.N.'s special representative in Iraq estimated that there were now a total of 40,000 detainees, including some 15,800 being held by the U.S. military.
Meanwhile, the issue of detainee treatment continued to be a front-and-center issue for the newly elected U.S. president.
Today (Wednesday) members of the Obama team will meet with more than a dozen retired military leaders who will urge the new president “to restore a U.S. image battered by allegations of torturing terrorism suspects.”
"We need to remove the stain, and the stain is on us, as well as on our
reputation overseas," said a member of the group, retired Vice Adm. Lee Gunn, former Navy inspector general.
The group plans to suggest a list of anti-torture principles, including making the Army Field Manual the single standard for all U.S. interrogators, revoking presidential orders allowing the CIA to use harsh treatment, giving the International Red Cross access to all prisoners held by intelligence agencies and declaring a moratorium on “rendering” prisoners to third countries for harsh interrogations.
The Army Field Manual requires humane treatment and forbids practices such as waterboarding -- a form of simulated drowning widely condemned as torture.
"If he'd just put a couple of sentences in his inaugural address, stating the
new position, then everything would flow from that," said retired Maj. Gen. Fred Haynes, whose regiment in World War Two raised the American flag on Iwo Jima.
Obama has denounced waterboarding and other forms of harsh questioning allowed by secret orders.
"Torture is how you create enemies, not how you defeat them," he said in October 2007. He has also vowed to close the Guantanamo Bay prison for terrorism suspects, an international symbol of prisoner abuse.
The retired military officers have previously met with Vice President-elect Joseph Biden and with Senator Hillary Clinton, who has been nominated b y Obama to be his Secretary of State.
U.S. President George W. Bush has repeatedly denied condoning torture, but his denials have been widely doubted at home and abroad. A Justice Department report this year found the White House ignored reports it received that FBI agents viewed some Guantanamo interrogations as "borderline torture."
While the issues of Guantanamo’s closing, rendition, and harsh interrogation techniques pose ongoing challenges for President-elect Obama, the administration of George W. Bush is being accused of continuing such abuses.
In the latest allegation, A Muslim American, Hossam Hemdan of Los Angeles, charged that he was tortured and beaten into confessing to a terrorism-related charge by the security services of Abu Dhabi – part of the oil-rich United Arab Emirates (UAE) -- which he said held him for nearly three months at the request of the U.S. government.
Hemdan, a 42-year-old naturalized U.S. citizen, told his brother by telephone this week that he confessed to terror-related charges after continually being beaten and subjected to harsh treatment. "They beat him very badly. They stood on his back and another person pulled his feet. They beat him on the bottoms of his feet," he charged. "He said he had a liver problem. They beat him on his liver on the right side (of his body)" until he lost consciousness.
Following his confession, he was placed in the custody of the Abu Dhabi criminal justice system, where he is currently being detained.
Hemdan was arrested in Los Angeles last August after several years of surveillance by the U.S. Federal Bureau of Investigation (FBI). The FBI has acknowledged that the case involved counterterrorism but has denied asking the UAE to hold him. How he got to Abu Dhabi is unclear.
The American Civil Liberties Union has filed a lawsuit in Federal Court charging that the administration illegally asked the UAE security services to hold Hemdan in order to avoid granting him his constitutional protections against illegal and unlimited detention.
The lawsuit named President Bush, Attorney General Michael Mukasey and FBI Director Robert Mueller as defendants and asked that the administration be ordered to demand Hemdan's release.
As a group of retired military leaders prepared to urge U.S. President-elect Barack Obama to quickly put an end to the harsh interrogation practices inflicted on security prisoners, a new United Nations report charged that Iraqi authorities were committing “grave human rights violations” in their treatment of thousands of detainees.
"Grave human rights violations ... remain unaddressed," the UN report said. It cited "ongoing widespread ill-treatment and torture of detainees by Iraqi law enforcement authorities, amid pervasive impunity of current and past human rights abuses."
The UN report cast doubt on whether Iraq will be prepared to professionally manage control over thousands of security detainees now in U.S. custody under a new security pact that would end the U.S. mission here by 2012. Approved by Iraq's parliament last week, the agreement mandates that American forces transfer to Iraqi custody all detainees believed to be a major threat and to release the rest "in a safe and orderly manner."
As an example, the UN report said that 123 men crammed had been into a single 540-square-foot cell — about the size of a studio apartment. It urged the Iraqi government to speed up legal reforms and strengthen the judicial system as it asserts more control over its own affairs. The report also renewed concern about the U.S. detention of suspects for prolonged periods without judicial review of their cases.
The U.N.'s special representative in Iraq estimated that there were now a total of 40,000 detainees, including some 15,800 being held by the U.S. military.
Meanwhile, the issue of detainee treatment continued to be a front-and-center issue for the newly elected U.S. president.
Today (Wednesday) members of the Obama team will meet with more than a dozen retired military leaders who will urge the new president “to restore a U.S. image battered by allegations of torturing terrorism suspects.”
"We need to remove the stain, and the stain is on us, as well as on our
reputation overseas," said a member of the group, retired Vice Adm. Lee Gunn, former Navy inspector general.
The group plans to suggest a list of anti-torture principles, including making the Army Field Manual the single standard for all U.S. interrogators, revoking presidential orders allowing the CIA to use harsh treatment, giving the International Red Cross access to all prisoners held by intelligence agencies and declaring a moratorium on “rendering” prisoners to third countries for harsh interrogations.
The Army Field Manual requires humane treatment and forbids practices such as waterboarding -- a form of simulated drowning widely condemned as torture.
"If he'd just put a couple of sentences in his inaugural address, stating the
new position, then everything would flow from that," said retired Maj. Gen. Fred Haynes, whose regiment in World War Two raised the American flag on Iwo Jima.
Obama has denounced waterboarding and other forms of harsh questioning allowed by secret orders.
"Torture is how you create enemies, not how you defeat them," he said in October 2007. He has also vowed to close the Guantanamo Bay prison for terrorism suspects, an international symbol of prisoner abuse.
The retired military officers have previously met with Vice President-elect Joseph Biden and with Senator Hillary Clinton, who has been nominated b y Obama to be his Secretary of State.
U.S. President George W. Bush has repeatedly denied condoning torture, but his denials have been widely doubted at home and abroad. A Justice Department report this year found the White House ignored reports it received that FBI agents viewed some Guantanamo interrogations as "borderline torture."
While the issues of Guantanamo’s closing, rendition, and harsh interrogation techniques pose ongoing challenges for President-elect Obama, the administration of George W. Bush is being accused of continuing such abuses.
In the latest allegation, A Muslim American, Hossam Hemdan of Los Angeles, charged that he was tortured and beaten into confessing to a terrorism-related charge by the security services of Abu Dhabi – part of the oil-rich United Arab Emirates (UAE) -- which he said held him for nearly three months at the request of the U.S. government.
Hemdan, a 42-year-old naturalized U.S. citizen, told his brother by telephone this week that he confessed to terror-related charges after continually being beaten and subjected to harsh treatment. "They beat him very badly. They stood on his back and another person pulled his feet. They beat him on the bottoms of his feet," he charged. "He said he had a liver problem. They beat him on his liver on the right side (of his body)" until he lost consciousness.
Following his confession, he was placed in the custody of the Abu Dhabi criminal justice system, where he is currently being detained.
Hemdan was arrested in Los Angeles last August after several years of surveillance by the U.S. Federal Bureau of Investigation (FBI). The FBI has acknowledged that the case involved counterterrorism but has denied asking the UAE to hold him. How he got to Abu Dhabi is unclear.
The American Civil Liberties Union has filed a lawsuit in Federal Court charging that the administration illegally asked the UAE security services to hold Hemdan in order to avoid granting him his constitutional protections against illegal and unlimited detention.
The lawsuit named President Bush, Attorney General Michael Mukasey and FBI Director Robert Mueller as defendants and asked that the administration be ordered to demand Hemdan's release.
FROM THOSE WONDERFUL FOLKS WHO BROUGHT YOU THE TORTURE MEMOS
By William Fisher
You may have heard that the Bush Administration is in a frenzied race to lock in its favorite policies before Barack Obama takes office.
So far, Bushies have managed to use Executive Orders to savage regulations that trash environmental protections, give early Christmas gifts to business interests, and yet again submerge science under ideology.
And it may not be so easy for the Obama Administration to undo this potpourri of hundreds of regulations.
But not all the Bushies’ assaults on the Constitution began with the election of a new president.
One shining example: In 2007, the Justice Department’s Office of Legal Counsel issued a memorandum concerning one of the most troubling aspects of W’s faith-based initiative.
This memorandum says it’s OK for organizations that are recipients of grants from the faith-based initiative to openly discriminate against hiring people on religious grounds. It reached that dubious conclusion despite existing antidiscrimination laws and Congress’ resounding refusal to change those laws.
The consequence is that charities affiliated with Catholic, Jewish, Muslim, or whatever faiths, can now legally refuse to hire job applicants – or accept volunteers -- simply because they are not of the same faith.
Maybe I’m missing something, but what that says to me is that my tax dollars might just be flowing to some outfit I couldn’t work for or benefit from.
Then there’s that pesky issue of Constitutionality. Doesn’t our Constitution say something about Congress making no law respecting an establishment of
Religion?
Now if you’re just hearing about this for the first time, it’s not surprising. That’s because the OLC regulation, while issued in 2007, was only recently posted on the Office of Legal Counsel’s website.
One has to wonder why, if the Bushies are so proud of their faith-based programs, they spirit this good news onto their website, as it were, in the dead of night in a way that suggests they’re trying to keep it well under the radar.
The OLC ruling grows out of a $1.5 million grant to a Christian relief and development organization called World Vision, Inc., founded in 1950. The grant came from the Office of Justice Programs pursuant to the Juvenile Justice and Delinquency Prevention Act of 1974.
Now, the law says that, as a condition of receiving grants pursuant to the JJDPA, recipients must refrain from discriminating on the basis of religion in “employment in connection with any programs or activity” funded by the grant.
But World Vision wasn’t thrilled with that law, so it asked the Department of Justice to waive it.
In World Vision’s application for a waiver, the group said it has made it a policy to hire only “Christian staff to assist with the mission of the organization.” It said it has done so in order to “maintain [its] identity and strength, which [are] at the core of [its] success,” and because it “can only remain true to [its] vision if [it] ha[s] the freedom to select like-minded staff, which includes staffing on a religious basis.” It stated that the work of the Vision Youth program is “very staff intensive.” And its staff all “share a faith, passion and commitment to [World Vision’s] mission.”
The OLC responded: “You (World Vision) have asked whether the Religious Freedom Restoration Act (“RFRA”) -- which prohibits the Government from “substantially burden[ing]” religious exercise unless that burden “is the least restrictive means of furthering [a] compelling governmental interest -- …requires OJP to exempt World Vision from the religious nondiscrimination provision. We conclude that RFRA is reasonably construed to require that such an accommodation be made for World Vision, and that OJP would be within its legal discretion, under the JJDPA and under RFRA, to exempt World Vision from the religious nondiscrimination requirement.”
What should be our take-away from all this? Well, it should come as no surprise that for the last eight years the Bush Administration has been pulling out all the stops to lower our traditional barriers between church and state. And succeeding.
But arguably the credibility of the OLC decision should be informed by that office’s recent history and twisted record. After all, why should we believe anything from the office that ruled it was OK for American investigators to use harsh interrogation techniques – torture, that is?
A ruling whose tortured logic will exact a price our country will be paying for decades.
But have faith; there’s a light at the end of this dark tunnel. Two lights, to be exact. The first is that, in less than two months, the Bushies will be gone – and, with them, one of the most divisive administrations in our country’s history. The second is that President-elect Obama has made it clear that, while he too will have a faith-based initiative, under no circumstances will it allow its beneficiaries to decide whom to hire on the basis of religion.
Faith-based organizations do a huge amount of good in our society. But they shouldn’t be allowed to use our tax dollars to adopt an ideology contrary to the most basic tenets of their own faith in order to execute their programs.
You may have heard that the Bush Administration is in a frenzied race to lock in its favorite policies before Barack Obama takes office.
So far, Bushies have managed to use Executive Orders to savage regulations that trash environmental protections, give early Christmas gifts to business interests, and yet again submerge science under ideology.
And it may not be so easy for the Obama Administration to undo this potpourri of hundreds of regulations.
But not all the Bushies’ assaults on the Constitution began with the election of a new president.
One shining example: In 2007, the Justice Department’s Office of Legal Counsel issued a memorandum concerning one of the most troubling aspects of W’s faith-based initiative.
This memorandum says it’s OK for organizations that are recipients of grants from the faith-based initiative to openly discriminate against hiring people on religious grounds. It reached that dubious conclusion despite existing antidiscrimination laws and Congress’ resounding refusal to change those laws.
The consequence is that charities affiliated with Catholic, Jewish, Muslim, or whatever faiths, can now legally refuse to hire job applicants – or accept volunteers -- simply because they are not of the same faith.
Maybe I’m missing something, but what that says to me is that my tax dollars might just be flowing to some outfit I couldn’t work for or benefit from.
Then there’s that pesky issue of Constitutionality. Doesn’t our Constitution say something about Congress making no law respecting an establishment of
Religion?
Now if you’re just hearing about this for the first time, it’s not surprising. That’s because the OLC regulation, while issued in 2007, was only recently posted on the Office of Legal Counsel’s website.
One has to wonder why, if the Bushies are so proud of their faith-based programs, they spirit this good news onto their website, as it were, in the dead of night in a way that suggests they’re trying to keep it well under the radar.
The OLC ruling grows out of a $1.5 million grant to a Christian relief and development organization called World Vision, Inc., founded in 1950. The grant came from the Office of Justice Programs pursuant to the Juvenile Justice and Delinquency Prevention Act of 1974.
Now, the law says that, as a condition of receiving grants pursuant to the JJDPA, recipients must refrain from discriminating on the basis of religion in “employment in connection with any programs or activity” funded by the grant.
But World Vision wasn’t thrilled with that law, so it asked the Department of Justice to waive it.
In World Vision’s application for a waiver, the group said it has made it a policy to hire only “Christian staff to assist with the mission of the organization.” It said it has done so in order to “maintain [its] identity and strength, which [are] at the core of [its] success,” and because it “can only remain true to [its] vision if [it] ha[s] the freedom to select like-minded staff, which includes staffing on a religious basis.” It stated that the work of the Vision Youth program is “very staff intensive.” And its staff all “share a faith, passion and commitment to [World Vision’s] mission.”
The OLC responded: “You (World Vision) have asked whether the Religious Freedom Restoration Act (“RFRA”) -- which prohibits the Government from “substantially burden[ing]” religious exercise unless that burden “is the least restrictive means of furthering [a] compelling governmental interest -- …requires OJP to exempt World Vision from the religious nondiscrimination provision. We conclude that RFRA is reasonably construed to require that such an accommodation be made for World Vision, and that OJP would be within its legal discretion, under the JJDPA and under RFRA, to exempt World Vision from the religious nondiscrimination requirement.”
What should be our take-away from all this? Well, it should come as no surprise that for the last eight years the Bush Administration has been pulling out all the stops to lower our traditional barriers between church and state. And succeeding.
But arguably the credibility of the OLC decision should be informed by that office’s recent history and twisted record. After all, why should we believe anything from the office that ruled it was OK for American investigators to use harsh interrogation techniques – torture, that is?
A ruling whose tortured logic will exact a price our country will be paying for decades.
But have faith; there’s a light at the end of this dark tunnel. Two lights, to be exact. The first is that, in less than two months, the Bushies will be gone – and, with them, one of the most divisive administrations in our country’s history. The second is that President-elect Obama has made it clear that, while he too will have a faith-based initiative, under no circumstances will it allow its beneficiaries to decide whom to hire on the basis of religion.
Faith-based organizations do a huge amount of good in our society. But they shouldn’t be allowed to use our tax dollars to adopt an ideology contrary to the most basic tenets of their own faith in order to execute their programs.
Thursday, October 23, 2008
Muddying Up The Waters
By William Fisher
A 31-year-old law designed to put an end to “redlining” and other restrictive practices that effectively shut poor and minority families out of home-ownership and neighborhood development is being attacked by conservative commentators as a major cause of today’s sub-prime mortgage mess.
The charge is being incessantly repeated by some of the so-called mainstream media as well as by right-wing bloggers.
For many years, local and regional banks were happy to take deposits from people who lived in deprived neighborhoods. A large proportion of these depositors were members of racial minority groups.
But the banks did not extend credit to these depositors. Small businesses did not receive finance. Mortgage loans were not made. Supermarkets and other shops were not built, forcing residents to travel miles for their household needs. Local jobs dwindled. Crime rose. Riots broke out in some cities in the U.S. Whole neighborhoods fell apart.
Then, in 1977, when Jimmy Carter was President of the U.S., Congress passed the Community Reinvestment Act (CRA). The Act required federally regulated and insured financial institutions to show that they were lending and investing in their communities.
Initially, some local and regional banks opposed the measure. To these, it represented unnecessary government interference in the private sector and mired them in what they saw as a sea of additional paperwork.
But over the years, these banks have largely become adjusted to the requirements of the CRA. Today, most regard it as normal “cost of doing business.”
The key words here are “federally regulated and insured financial institutions.” Which means commercial banks and thrift organizations.
Not included were investment banks, mortgage brokers, and the now-bankrupt non-bank lenders such as New Century Financial Corp. and Ameriquest that underwrote most of the subprime loans that we now know were so toxic.
The reason is that these private non-bank lenders were regulated by 50 different state banking supervisors instead of the federal government – which effectively meant they were not regulated at all.
And those who champion the CRA point out that the default rate on CRA mortgages is far below the national average and many times lower than the sub-prime mortgages written by unsupervised lenders.
Ellen Seidman, Director of the U.S. Office of Thrift Supervision under President Bush 41 until 2001 and now an official at The New America Foundation, told us, “In the 30 years since its enactment, CRA has generated major changes in the manner in which banks and thrifts view and serve low- and moderate-income communities and consumers.”
Federal housing data shows it was the unregulated private sector -- not the government or government-backed companies – that was responsible for the explosion of subprime lending at the core of the crisis. According to the Federal Reserve Board, more than 84 percent of the subprime mortgages in 2006 were issued by private unregulated lending institutions and that private firms made nearly 83 percent of the subprime loans to low- and moderate-income borrowers that year.
Nor does the timing correspond. Subprime lending offered high-cost loans to the weakest borrowers during the housing boom that lasted from 2001 to 2007. Subprime lending was at its height from 2004 to 2006.
Conservative critics of the CRA also claim that the Clinton administration pushed Fannie Mae and Freddy Mac to purchase risky sub-prime mortgage loans made to people with known poor credit histories.
These entities have operated since 1968 as government sponsored enterprises (GSEs). This means that, although the two companies are privately owned and operated by shareholders, they were assumed to be protected financially by the support of the Federal Government – and now, both have been taken over by the Government.
Fannie Mae was created in 1938 as part of President Franklin Delano Roosevelt's New Deal. The collapse of the national housing market in the wake of the Great Depression discouraged private lenders from investing in home loans. Fannie Mae was established in order to provide local banks with federal money to finance home mortgages in an attempt to raise levels of home ownership and the availability of affordable housing.
But Fannie and Freddie aren’t lenders, to minorities or anyone else. They purchase loans from private lenders who actually underwrite the loans. In an effort to promote affordable home ownership for minorities and rural whites, the Department of Housing and Urban Development (HUD) set targets for Fannie and Freddie in 1992 to purchase low-income loans for sale into the secondary market that eventually reached 52 percent of loans given to low-to moderate-income families.
But these loans, and those to low- and moderate-income families, represent a
small proportion of overall lending. Between 2004 and 2006, when subprime lending was exploding, Fannie and Freddie went from holding 48 percent of the subprime loans to holding about 24 percent. Among the reasons is that Fannie and Freddie were supervised by far more robust standards than most of the unregulated players in the private sector. Most of these unregulated players have now gone bankrupt or are in serious legal trouble.
During the same three-year period, these same unregulated private investment banks dominated the mortgage loans that were packaged and sold into the secondary mortgage market. According to McClatchy News Service, in 2005 and 2006, the private sector securitized almost two thirds of all U.S. mortgages, supplanting Fannie and Freddie.
Ellen Seidman, who successfully presided over the thrift crisis in the 1980s and 1990s -- the failure of 2412 savings and loan associations -- testified to Congress that “Billions, perhaps trillions, of dollars of credit and investment has come into these communities spurred, incented, or directed by the Act and collateral laws such as the Home Mortgage Disclosure Act (HMDA), various anti-discrimination statutes, and obligations placed on Fannie Mae and Freddie Mac. And while there was a time when those subject to CRA complained bitterly about it, in general that time has passed.”
But despite a substantial body of evidence to the contrary, conservative critics of the CRA continue to blame it for the nation’s economic woes.
Conservative columnist Charles Krauthammer wrote recently that while the goal of the CRA was admirable, "it led to tremendous pressure on Fannie Mae and Freddie Mac — who in turn pressured banks and other lenders — to extend mortgages to people who were borrowing over their heads. That's called subprime lending. It lies at the root of our current calamity."
And on FOX News, commentator Neil Cavuto remarked, “I don't remember a clarion call that said Fannie and Freddie are a disaster. Loaning to minorities and risky folks is a disaster.
A 31-year-old law designed to put an end to “redlining” and other restrictive practices that effectively shut poor and minority families out of home-ownership and neighborhood development is being attacked by conservative commentators as a major cause of today’s sub-prime mortgage mess.
The charge is being incessantly repeated by some of the so-called mainstream media as well as by right-wing bloggers.
For many years, local and regional banks were happy to take deposits from people who lived in deprived neighborhoods. A large proportion of these depositors were members of racial minority groups.
But the banks did not extend credit to these depositors. Small businesses did not receive finance. Mortgage loans were not made. Supermarkets and other shops were not built, forcing residents to travel miles for their household needs. Local jobs dwindled. Crime rose. Riots broke out in some cities in the U.S. Whole neighborhoods fell apart.
Then, in 1977, when Jimmy Carter was President of the U.S., Congress passed the Community Reinvestment Act (CRA). The Act required federally regulated and insured financial institutions to show that they were lending and investing in their communities.
Initially, some local and regional banks opposed the measure. To these, it represented unnecessary government interference in the private sector and mired them in what they saw as a sea of additional paperwork.
But over the years, these banks have largely become adjusted to the requirements of the CRA. Today, most regard it as normal “cost of doing business.”
The key words here are “federally regulated and insured financial institutions.” Which means commercial banks and thrift organizations.
Not included were investment banks, mortgage brokers, and the now-bankrupt non-bank lenders such as New Century Financial Corp. and Ameriquest that underwrote most of the subprime loans that we now know were so toxic.
The reason is that these private non-bank lenders were regulated by 50 different state banking supervisors instead of the federal government – which effectively meant they were not regulated at all.
And those who champion the CRA point out that the default rate on CRA mortgages is far below the national average and many times lower than the sub-prime mortgages written by unsupervised lenders.
Ellen Seidman, Director of the U.S. Office of Thrift Supervision under President Bush 41 until 2001 and now an official at The New America Foundation, told us, “In the 30 years since its enactment, CRA has generated major changes in the manner in which banks and thrifts view and serve low- and moderate-income communities and consumers.”
Federal housing data shows it was the unregulated private sector -- not the government or government-backed companies – that was responsible for the explosion of subprime lending at the core of the crisis. According to the Federal Reserve Board, more than 84 percent of the subprime mortgages in 2006 were issued by private unregulated lending institutions and that private firms made nearly 83 percent of the subprime loans to low- and moderate-income borrowers that year.
Nor does the timing correspond. Subprime lending offered high-cost loans to the weakest borrowers during the housing boom that lasted from 2001 to 2007. Subprime lending was at its height from 2004 to 2006.
Conservative critics of the CRA also claim that the Clinton administration pushed Fannie Mae and Freddy Mac to purchase risky sub-prime mortgage loans made to people with known poor credit histories.
These entities have operated since 1968 as government sponsored enterprises (GSEs). This means that, although the two companies are privately owned and operated by shareholders, they were assumed to be protected financially by the support of the Federal Government – and now, both have been taken over by the Government.
Fannie Mae was created in 1938 as part of President Franklin Delano Roosevelt's New Deal. The collapse of the national housing market in the wake of the Great Depression discouraged private lenders from investing in home loans. Fannie Mae was established in order to provide local banks with federal money to finance home mortgages in an attempt to raise levels of home ownership and the availability of affordable housing.
But Fannie and Freddie aren’t lenders, to minorities or anyone else. They purchase loans from private lenders who actually underwrite the loans. In an effort to promote affordable home ownership for minorities and rural whites, the Department of Housing and Urban Development (HUD) set targets for Fannie and Freddie in 1992 to purchase low-income loans for sale into the secondary market that eventually reached 52 percent of loans given to low-to moderate-income families.
But these loans, and those to low- and moderate-income families, represent a
small proportion of overall lending. Between 2004 and 2006, when subprime lending was exploding, Fannie and Freddie went from holding 48 percent of the subprime loans to holding about 24 percent. Among the reasons is that Fannie and Freddie were supervised by far more robust standards than most of the unregulated players in the private sector. Most of these unregulated players have now gone bankrupt or are in serious legal trouble.
During the same three-year period, these same unregulated private investment banks dominated the mortgage loans that were packaged and sold into the secondary mortgage market. According to McClatchy News Service, in 2005 and 2006, the private sector securitized almost two thirds of all U.S. mortgages, supplanting Fannie and Freddie.
Ellen Seidman, who successfully presided over the thrift crisis in the 1980s and 1990s -- the failure of 2412 savings and loan associations -- testified to Congress that “Billions, perhaps trillions, of dollars of credit and investment has come into these communities spurred, incented, or directed by the Act and collateral laws such as the Home Mortgage Disclosure Act (HMDA), various anti-discrimination statutes, and obligations placed on Fannie Mae and Freddie Mac. And while there was a time when those subject to CRA complained bitterly about it, in general that time has passed.”
But despite a substantial body of evidence to the contrary, conservative critics of the CRA continue to blame it for the nation’s economic woes.
Conservative columnist Charles Krauthammer wrote recently that while the goal of the CRA was admirable, "it led to tremendous pressure on Fannie Mae and Freddie Mac — who in turn pressured banks and other lenders — to extend mortgages to people who were borrowing over their heads. That's called subprime lending. It lies at the root of our current calamity."
And on FOX News, commentator Neil Cavuto remarked, “I don't remember a clarion call that said Fannie and Freddie are a disaster. Loaning to minorities and risky folks is a disaster.
Tuesday, October 21, 2008
CLOSING GITMO ? DREAM ON!
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.
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.
Seven Years and Counting!
By William Fisher
Seventeen Chinese Muslims who have been imprisoned at Guantanamo Bay for seven years will now have to wait still longer to discover whether a U.S. appeals court will confirm or reverse a judge’s earlier decision that they be immediately released into the United States.
Yesterday, a split federal appeals court refused to allow the immediate release into the U.S. of the 17, which means they will remain in prison for at least several more weeks.
In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit agreed with the Bush administration’s argument that the Muslims' release should be halted while the government prepares its full appeal. The court will hear oral arguments on Nov. 24.
Meanwhile, lawyers for the detainees were said to be considering other options. It has been reported that an appeal directly to the Supreme Court might be a possibility, since that court ruled last June that foreign detainees at Guantanamo have the right to appeal to federal judges to challenge their imprisonment.
Two appointees of the first President Bush voted to halt the detainees' immediate release. They are Judges Karen Henderson and A. Raymond Randolph.
But in an outspoken dissent, Judge Judith W. Rogers argued that the detainees should be freed. She noted that the Bush administration had acknowledged the Uighurs were no longer considered enemy combatants even as it continued to argue the detainees were a national security risk based on little more than the fact they had admitted to receiving weapons training in Afghanistan.
"The fact that petitioners received firearms training cannot alone show they are dangerous, unless millions of United States resident citizens who have received firearms training are to be deemed dangerous as well," Rogers wrote. "And, in any event, the district court found there is no evidence petitioners harbor hostility toward the United States."
She added that the government's appeal was problematic "given both the length of time that petitioners have been denied their liberty" and the years the government has already had up to now — with little success — to justify the Uighurs' continued imprisonment.
Judge Rogers was appointed by President Clinton.
The appeals court's move came after U.S. District Judge Ricardo M. Urbina
on October 10 ruled that the government should free the detainees immediately and ordered them brought physically to his court. Urbina said it would be wrong for the Bush administration to continue holding the Uighurs since they are no longer considered enemy combatants.
The detainees were days away from being released when the government requested and received a stay of Judge Urbina’s ruling to allow time for an appeal.
Lawyers for the Uighurs had carefully set up arrangements for the Uighurs’ to be placed in the custody of religious organizations and individuals in the U.S.
Among the central issues in the case is whether a federal judge has the authority to order the release of Guantanamo prisoners who were unlawfully detained by the U.S. and cannot be sent back to their homeland. The Uighurs, who are Turkic-speaking Muslims in western China, have been cleared for release from Guantanamo but fear they will be tortured if they are turned over to China.
Also at issue is the potential use of immigration law by the government to prevent the Uighurs from entering the U.S. It is possible they could be freed into the U.S. by a federal court, but then immediately re-arrested, detained and ultimately deported because they had not been legally admitted into the U.S.
Judge Urbina’s ruling may yet become one of the historic decisions in U.S. jurisprudence. He wrote, ”There come a time when delayed action prompted by judicial deference to the executive branch's function yields inaction not consistent with constitutional imperative. Such a time has come in the case of the 17 Uighurs in Guantanamo Bay, Cuba...whom the government has held for seven years without an opportunity for judicial redress until recently."
Urbina noted that it was the government that decided that it would no longer consider the 17 Uighurs as enemy combatants.
After the Supreme Court's decision in Boumedienne v. Bush -- restoring the court's jurisdiction over habeas corpus petitions -- the Uighurs filed motions alleging that their continued detention was unlawful and requesting the court order the government to release them into the U.S.
Urbina ruled that "Because the Constitution prohibits indefinite detention with just cause…continued detention of the petitioners is unlawful."
"Because separation of powers concerns do not trump the very principle upon which this nation was founded -- the unalienable right to liberty -- the court orders the government to release the petitioners into the U.S," he wrote.
The Bush administration has said it was continuing "heightened" efforts to find another country to accept the Uighurs.
Albania accepted five Uighur detainees in 2006 but since has balked at taking others. Other nations are said to have followed the same tack, reportedly out of fear of diplomatic repercussions from China. Foreign policy experts have also noted that the U.S. appears to have greatly diminished leverage in the world community to persuade other countries to accept the Uighurs.
Uighurs are from Xinjiang — an isolated region that borders Afghanistan, Pakistan and six Central Asian nations. They say they have been repressed by the Chinese government. China long has said that insurgents are leading an Islamic separatist movement in Xinjiang. The Uighur detainees were captured in Pakistan and Afghanistan in 2001.
The possibility that Judge Urbina’s decision will prevail cannot be ruled out. From time to time, a decision of a lower court judge is reversed by an appeals court – but ultimately affirmed by the Supreme Court.
David Cole, a law professor at Georgetown University and one of the Uighurs’ attorneys, told us that this is precisely what happened in another landmark Guantanamo case, Hamdan v. Bush.
“Surprisingly,” Cole said, “Hamdan prevailed in the district court, when U.S. District Judge James Robertson courageously ruled that trying Hamdan in a military tribunal of the kind set up by the government would violate the Geneva Conventions.”
But Cole added that, “Not surprisingly, that decision was unanimously reversed, on every conceivable ground, by the Court of Appeals for the D.C. Circuit, in an opinion joined fully by then Judge, now Chief Justice, John Roberts.”
He noted that after the Supreme Court agreed to hear the Hamdan case, Congress passed a law that appeared to be designed to strip the Supreme Court of its jurisdiction to do so. The law “required defendants in military tribunals to undergo their trials before seeking judicial review, and prescribed the D.C. Circuit as the exclusive forum for such review,” Cole said.
But in June 2008, the Supreme Court ruled 5-4 that the Military Commissions Act of 2006 unconstitutionally limited detainee's access to judicial review and that detainees have the right to challenge their detention in conventional civilian courts.
Salim Hamdan, the Yemeni-born driver for Osama bin Laden who was captured in Afghanistan, was charged at Guantanamo, tried last August before the first Military Tribunal, 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.
In a related and far-reaching development, President George W. Bush today announced that his administration would in effect “kick the Guantánamo can down the road” – and not close the notorious prison.
Quoting senior administration officials, newspapers reported that Bush never considered proposals drafted by the State Department and the Pentagon that outlined options for transferring the detainees elsewhere.
According the U.S. media, 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.
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 255 Guantanamo detainees, many of whom have already been declared eligible for release.
Seventeen Chinese Muslims who have been imprisoned at Guantanamo Bay for seven years will now have to wait still longer to discover whether a U.S. appeals court will confirm or reverse a judge’s earlier decision that they be immediately released into the United States.
Yesterday, a split federal appeals court refused to allow the immediate release into the U.S. of the 17, which means they will remain in prison for at least several more weeks.
In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit agreed with the Bush administration’s argument that the Muslims' release should be halted while the government prepares its full appeal. The court will hear oral arguments on Nov. 24.
Meanwhile, lawyers for the detainees were said to be considering other options. It has been reported that an appeal directly to the Supreme Court might be a possibility, since that court ruled last June that foreign detainees at Guantanamo have the right to appeal to federal judges to challenge their imprisonment.
Two appointees of the first President Bush voted to halt the detainees' immediate release. They are Judges Karen Henderson and A. Raymond Randolph.
But in an outspoken dissent, Judge Judith W. Rogers argued that the detainees should be freed. She noted that the Bush administration had acknowledged the Uighurs were no longer considered enemy combatants even as it continued to argue the detainees were a national security risk based on little more than the fact they had admitted to receiving weapons training in Afghanistan.
"The fact that petitioners received firearms training cannot alone show they are dangerous, unless millions of United States resident citizens who have received firearms training are to be deemed dangerous as well," Rogers wrote. "And, in any event, the district court found there is no evidence petitioners harbor hostility toward the United States."
She added that the government's appeal was problematic "given both the length of time that petitioners have been denied their liberty" and the years the government has already had up to now — with little success — to justify the Uighurs' continued imprisonment.
Judge Rogers was appointed by President Clinton.
The appeals court's move came after U.S. District Judge Ricardo M. Urbina
on October 10 ruled that the government should free the detainees immediately and ordered them brought physically to his court. Urbina said it would be wrong for the Bush administration to continue holding the Uighurs since they are no longer considered enemy combatants.
The detainees were days away from being released when the government requested and received a stay of Judge Urbina’s ruling to allow time for an appeal.
Lawyers for the Uighurs had carefully set up arrangements for the Uighurs’ to be placed in the custody of religious organizations and individuals in the U.S.
Among the central issues in the case is whether a federal judge has the authority to order the release of Guantanamo prisoners who were unlawfully detained by the U.S. and cannot be sent back to their homeland. The Uighurs, who are Turkic-speaking Muslims in western China, have been cleared for release from Guantanamo but fear they will be tortured if they are turned over to China.
Also at issue is the potential use of immigration law by the government to prevent the Uighurs from entering the U.S. It is possible they could be freed into the U.S. by a federal court, but then immediately re-arrested, detained and ultimately deported because they had not been legally admitted into the U.S.
Judge Urbina’s ruling may yet become one of the historic decisions in U.S. jurisprudence. He wrote, ”There come a time when delayed action prompted by judicial deference to the executive branch's function yields inaction not consistent with constitutional imperative. Such a time has come in the case of the 17 Uighurs in Guantanamo Bay, Cuba...whom the government has held for seven years without an opportunity for judicial redress until recently."
Urbina noted that it was the government that decided that it would no longer consider the 17 Uighurs as enemy combatants.
After the Supreme Court's decision in Boumedienne v. Bush -- restoring the court's jurisdiction over habeas corpus petitions -- the Uighurs filed motions alleging that their continued detention was unlawful and requesting the court order the government to release them into the U.S.
Urbina ruled that "Because the Constitution prohibits indefinite detention with just cause…continued detention of the petitioners is unlawful."
"Because separation of powers concerns do not trump the very principle upon which this nation was founded -- the unalienable right to liberty -- the court orders the government to release the petitioners into the U.S," he wrote.
The Bush administration has said it was continuing "heightened" efforts to find another country to accept the Uighurs.
Albania accepted five Uighur detainees in 2006 but since has balked at taking others. Other nations are said to have followed the same tack, reportedly out of fear of diplomatic repercussions from China. Foreign policy experts have also noted that the U.S. appears to have greatly diminished leverage in the world community to persuade other countries to accept the Uighurs.
Uighurs are from Xinjiang — an isolated region that borders Afghanistan, Pakistan and six Central Asian nations. They say they have been repressed by the Chinese government. China long has said that insurgents are leading an Islamic separatist movement in Xinjiang. The Uighur detainees were captured in Pakistan and Afghanistan in 2001.
The possibility that Judge Urbina’s decision will prevail cannot be ruled out. From time to time, a decision of a lower court judge is reversed by an appeals court – but ultimately affirmed by the Supreme Court.
David Cole, a law professor at Georgetown University and one of the Uighurs’ attorneys, told us that this is precisely what happened in another landmark Guantanamo case, Hamdan v. Bush.
“Surprisingly,” Cole said, “Hamdan prevailed in the district court, when U.S. District Judge James Robertson courageously ruled that trying Hamdan in a military tribunal of the kind set up by the government would violate the Geneva Conventions.”
But Cole added that, “Not surprisingly, that decision was unanimously reversed, on every conceivable ground, by the Court of Appeals for the D.C. Circuit, in an opinion joined fully by then Judge, now Chief Justice, John Roberts.”
He noted that after the Supreme Court agreed to hear the Hamdan case, Congress passed a law that appeared to be designed to strip the Supreme Court of its jurisdiction to do so. The law “required defendants in military tribunals to undergo their trials before seeking judicial review, and prescribed the D.C. Circuit as the exclusive forum for such review,” Cole said.
But in June 2008, the Supreme Court ruled 5-4 that the Military Commissions Act of 2006 unconstitutionally limited detainee's access to judicial review and that detainees have the right to challenge their detention in conventional civilian courts.
Salim Hamdan, the Yemeni-born driver for Osama bin Laden who was captured in Afghanistan, was charged at Guantanamo, tried last August before the first Military Tribunal, 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.
In a related and far-reaching development, President George W. Bush today announced that his administration would in effect “kick the Guantánamo can down the road” – and not close the notorious prison.
Quoting senior administration officials, newspapers reported that Bush never considered proposals drafted by the State Department and the Pentagon that outlined options for transferring the detainees elsewhere.
According the U.S. media, 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.
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 255 Guantanamo detainees, many of whom have already been declared eligible for release.
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