Originally published by the Future of Freedom Foundation.
When the Obama administration’s Detention Policy Task Force, established by Executive Order on the President’s second day in office, conceded last week that it would miss its six-month deadline to issue its recommendations about how to close Guantánamo, many observers focused on whether this meant that Obama would fail to meet his deadline of Jan 21, 2010 for the closure of the prison, and missed the bigger story, which was only revealed through close scrutiny of the Task Force’s five-page interim report (PDF).
Disturbingly, this document revealed that the Task Force envisages three options for dealing with the prisoners who will not be released from Guantánamo: trials in federal courts, trials by Military Commission (the “terror trials” introduced by former Vice President Dick Cheney in November 2001, and revived by Congress in 2006 after the Supreme Court ruled them illegal), and indefinite detention without charge or trial.
These proposals accord with plans outlined by the President in a major national security speech in May, but they are no more acceptable now than they were then, for one simple reason: they are designed not to secure justice, but to prevent any of the prisoners who fit into these three categories from being released; in other words, as Glenn Greenwald reported for Salon, “If they know they’ll convict you in a real court proceeding, they’ll give you one; if they think they might lose there, they’ll put you in a military commission; if they’re still not sure they will win, they’ll just indefinitely imprison you without any charges.”
The proposals put forward by the Task Force — and clearly endorsed by Obama — are bitterly disappointing, not only because they are so shamefully dismissive of the presumption of innocence, and because they reveal a desire to further turn the judicial system on its head by endorsing preventive detention, but also because they are cowardly in the extreme.
There is, to be blunt, no need for the administration to revive the widely reviled Commissions (criticized in the past by most leading Democrats, including Barack Obama), because the federal courts are more than capable of prosecuting terror suspects, having successfully done so on more than a hundred occasions in the last 15 years. The Task Force itself admitted in its interim report that “A broad range of terrorism offences with extraterritorial reach are available in the criminal code and procedures exist to protect classified information in federal court trial where necessary,” and also noted, “The evidentiary rules at trial are well-established, and experienced prosecutors can often find ways to overcome any challenges those rules may pose to [the] introduction of critical evidence in specific cases.”
In addition, as Glenn Greenwald also explained, “as a result of breathtakingly broad criminal laws in the US defining ‘material support for terrorism,’ there are few things easier than obtaining a criminal conviction in federal court against people accused of being terrorists.”
Moreover, given that successful prosecutions have taken place in cases where no evidence of actual terrorist activity is required, there is no excuse whatsoever for proposing to continue to hold some prisoners indefinitely, using a form of “preventive detention” for which Congressional approval will have to be sought. If, after seven and a half years, the government cannot even reach the low evidentiary hurdle required by a federal court, then it should stop pretending that it has grounds for believing that these particular prisoners are too dangerous to be released, and let them go.
For the Guantánamo prisoners, it is worrying enough that everyone involved in reviewing their cases for the government appears to have forgotten a number of crucial facts that tend to undermine the illusion that the prison still contains a significant number of terrorists: namely, that the majority of the prisoners were not seized on a battlefield, but were handed over by the US military’s Afghan and Pakistani allies, at a time when bounty payments, averaging $5,000 a head were widespread (PDF); that they were never screened according to the Geneva Conventions’ competent tribunals — held close to the time and place of capture — to establish whether they were actually combatants, or civilians caught up in the fog of war; that, subsequently, they were never adequately screened at Guantánamo, where the process instigated by the Pentagon — the Combatant Status Review Tribunals — was described by a former insider, Lt. Col. Stephen Abraham, as a farce, in which most of the material put forward as evidence was “garbage,” and the entire process was designed to rubberstamp the Bush administration’s decision that they were all “enemy combatants,” who could be held without charge or trial; and that the majority of the supposed evidence against the men has, indeed, been revealed as deeply untrustworthy when scrutinized by District Court judges.
Following the Supreme Court’s ruling last summer that the prisoners have habeas corpus rights, judges in the District Courts have, in 84 percent of the cases on which they have delivered a verdict, ruled that the government either had no case at all, or that its cases were based upon statements by unreliable witnesses, who were tortured, coerced or bribed, or had severe mental health problems. In addition, judges have also poured scorn on attempts to create a “mosaic” of intelligence from these and other sources that does not stand up to close examination.
The fact that the Task Force appears not to have fully understood the scale of the Bush administration’s incompetence regarding the capture and interrogation of the Guantánamo prisoners, and the manifold problems with the supposed evidence against them counts, in the end, as a distressing example of the sort of paranoia for which Dick Cheney is best known triumphing over the kind of common sense and dedication to the pursuit of justice for which Barack Obama seemed to stand just a few short months ago.
Moreover, the Task Force’s egregious errors are not confined just to the present, and to the question of what will happen to the Guantánamo prisoners. As the interim report states, “The Detention Policy Task Force has thus far focused much of its work on developing options for the lawful disposition of detainees held at Guantánamo Bay. Important questions remain concerning our policies in the future regarding apprehension, detention, and treatment of suspected terrorists, as part of our broader strategy to defeat al-Qaeda and its affiliates.”
The authors of the report then indicate that they are involved in an ongoing analysis of a number of questions relating to the future, including “what the rules and boundaries should be for any future detention under the rule of war,” ignoring, both in the present, and in their deliberations about the future, that the answer has, in fact, been obvious all along, and that, as it appears from this hideous and worrying document, all the talk of alternative trial systems and preventive detention is nothing more than a conjuring trick to disguise policies that, essentially, cleave closely to the arrogant and lawless innovations conceived by senior officials in the Bush administration.
And the answer that has been obvious all along? It goes like this: If your enemy is a combatant, seized in wartime, then you hold him as a prisoner of war according to the Geneva Conventions, which prohibit inhumane treatment and coerced interrogations, until the end of hostilities. And if your enemy is a terrorist, then you hand him over to interrogators who know how to get a man to talk without using torture, according him the procedural protections in the Bill of Rights, and you put him on trial in a federal court.
It really is that simple.