Today marks yet another anniversary for our prison in Gitmo. Over the last year, the most notable change has been that–after Obama’s DOJ succeeded in gutting habeas corpus so they could keep Adnan Latif, against whom they had no credible evidence, detained–Latif died under unexplained circumstances. Laura Poitras has a powerful video documenting Latif’s torment to mark today’s anniversary. Jason Leopold also has a story with new details on Latif’s death.
And while I do think the Administration’s willingness to so twist the law to keep Latif is itself witness to Obama’s real intent on indefinite detention, I still think the argument I made last year–that Bagram is the true exhibit of Obama’s fondness for review-free detention–stands. Here’s last year’s Gitmo post in its entirety, with updates below.
On a near daily basis in the last week or so, Jason Leopold has tweeted some quote from the daily White House press briefing in which a journalist asks Jay Carney a question about detention, to which Carney responds by insisting the Administration still intends to close Gitmo.
Q One other topic. Wednesday is apparently the 10th anniversary of the prison in Guantanamo Bay, and I’m wondering what the White House says now to critics who point to this as a pretty clear broken promise. The President had wanted to close that within a year. That hasn’t happened for a lot of the history that you know of. And now it’s like there’s really no end in sight. How do you respond to the criticism that this is just a big, broken promise?
MR. CARNEY: Well, the commitment that the President has to closing Guantanamo Bay is as firm today as it was during the campaign. We all are aware of the obstacles to getting that done as quickly as the President wanted to get it done, what they were and the fact that they continued to persist. But the President’s commitment hasn’t changed at all. And it’s the right thing to do for our national security interests.
That has been an opinion shared not just by this President or members of this administration, but senior members of the military as well as this President’s predecessor and the man he ran against for this office in the general election. So we will continue to abide by that commitment and work towards its fulfillment.
And that response usually succeeds in shutting the journalist up.
No one has, as far as I know, asked the more general question: “does the Administration plan to get out of the due process-free indefinite detention business?” That question would be a lot harder for Carney to answer–though the answer, of course, is “no, the Administration has no intention of stopping the practice of holding significant numbers of detainees without adequate review.” Rather than reversing the practice started by the Bush Administration, Obama has continued it, even re-accelerated it, expanding our prison at Bagram several times.
That question seems to be absent from discussions about Gitmo’s anniversary, too. Take this debate from the NYT.
Deborah Pearlstein takes solace in her assessment that Gitmo has gotten better over the last decade.
In 2002, detention conditions at the base were often abusive, and for some, torturous. Today, prisoners are generally housed in conditions that meet international standards, and the prison operates under an executive order that appears to have succeeded in prohibiting torture and cruelty. In 2002, the U.S. president asserted exclusive control over the prison, denying the applicability of fundamental laws that would afford its residents even the most basic humanitarian and procedural protections, and rejecting the notion that the courts had any power to constrain executive discretion. Today, all three branches of government are engaged in applying the laws that recognize legal rights in the detainees. Guantánamo once housed close to 800 prisoners, and most outside observers were barred from the base. Today, it holds 171, and independent lawyers, among others, have met with most detainees many times.
But she doesn’t mention that the Administration still operates a prison alleged to be abusive, even torturous, still rejects the notion that courts have any power to constrain executive discretion over that prison. And that prison holds over 3,000 men in it!
Sure, Gitmo has gotten better, but that only serves to distract from the fact that our detention practices–except for the notable fact that we claim to have ended the most physical forms of torture–have not.
David Cole scolds those in Congress who “don’t seem troubled at all about keeping men locked up who the military has said could be released, or about keeping open an institution that jeopardizes our security,” yet doesn’t mention that Bagram does the same. Nor does he note the part of the Administration’s NDAA signing statement that suggested Congress’ salutary effort to expand detainee review would not necessarily apply to Bagram. How can it all be Congress’ fault when Obama isn’t fulfilling the letter of the law providing more meaningful review to those we’re holding at Bagram?
Even the brilliant Vince Warren focuses on the “legal black hole” that is Gitmo, without mentioning the bigger legal black hole that is Bagram.
Among the four participants in the debate, only Eric Posner even mentions Bagram, suggesting that that’s one less optimal alternative to keeping prisoners at Gitmo.
To be sure, there are other options. Detainees could be placed in prison camps on foreign territory controlled by the U.S. military, where they lack access to U.S. courts and security is less certain.
But then Posner misconstrues the issue.
Some critics believe that the whole idea of a war on terror is misconceived, that Congress could not have lawfully declared war on Al Qaeda, and that therefore suspected members of Al Qaeda cannot be detained indefinitely like enemy soldiers but must either be charged in a court or released. This position has been rejected repeatedly by the courts, but even if it were correct, Guantánamo would remain a legitimate place to detain enemy soldiers picked up on “hot” battlefields wherever they may be now or in the future — places like Afghanistan, Iraq, Libya and maybe soon Iran, to name a few.
There’s a difference between what is legal under international law developed for very different wars and what is just or what is the best way to conduct that war. And the problem with Gitmo (mitigated somewhat over the decade)–and the problem with Bagram, still–is that we’re spending unbelievable amounts of money to detain and abuse people that we haven’t even adequately reviewed to make sure we need to detain them. That’s not a smart way to conduct a war, particularly not one its backers insist will never end, particularly one that depends on our ability to win support among Afghans and other Muslims.
The only thing that was and is problematic about Gitmo that is not also problematic about Bagram is the publicity surrounding it (presumably, though, just here and in Europe–I imagine Afghans, Pakistanis, and al Qaeda members know as much about Bagram as they do about Gitmo). That is, by treating–and allowing the Administration to treat–Gitmo as the problem, rather than due process-free and possibly abusive indefinite detention generally, we’re all acting as if the problem is that people know we’re conducting due process-free indefinite detention, not that we’re doing it at all. Continue reading
In September, Libyan rebels found a collection of documents that seemed as if they had been specially packaged to cause the US and–especially–the Brits a great deal of embarrassment. They detailed the rendition to Libyan torture of one of the leaders of the anti-Qaddafi uprising, Adul Hakim Belhaj. Today, the Guardian has a long, important article detailing the story behind that package of documents. Go read the whole thing–but here’s the chronology it lays out.
In short, the British appear to have traded a handful of LIFG members to lay the groundwork for an expanded oil relationship with Qaddafi–a relationship that would culminate, in 2009, with the exchange of Lockerbie bomber Abdelbaset al-Megrahi for some BP contracts [see chetnolian's correction on this point].
And along the way, in a process that parallels what has happened as we’ve killed off Taliban leaders with drone strikes, LIFG grew more extreme.
By early 2005, the British government had been forced to conclude that the capture of the more moderate elements among the LIFG leadership, such as Belhaj and al-Saadi, had resulted in a power vacuum that was being filled by men with pan-Islamist ambitions. Among a number of documents found in a second Tripoli cache, at the British ambassador’s abandoned residence, was a secret 58-page MI5 briefing paper that said “the extremists are now in the ascendancy,” and that they were “pushing the group towards a more pan-Islamic agenda inspired by AQ [al-Qaida]“.
Well then, if Libya ends up going sour or chaos continues to leach into Mali, I guess we’ll only have ourselves and Obama’s celebrated Libyan intervention to blame.
That and the crimes we committed 8 years ago all so the Brits could get Libyan oil.
One final comment. As it becomes increasingly clear how our former partners in crime can make life difficult if they lose their power, I wonder if it changes US willingness to back our old partner in torture in Egypt?
While it is good news that the Administration is finally going to do something about the non-Afghan detainees at Bagram, the WaPo sure lets its anonymous Administration sources put the best spin on the move.
It is not, apparently, a response to our closest ally finding us in potential violation of the Geneva Convention. It is not the fact that Congress just required the Administration to give detainees the kind of due process it has been refusing (which the WaPo doesn’t even mention). Nope! It is, according to the WaPo, because the Administration has decided to enact orderly transfers now.
The Obama administration is considering the repatriation of most, if not all, of the non-Afghan detainees held at the main American-run prison in Afghanistan, an effort to oversee their transfer before U.S. officials relinquish control of the facility, according to administration officials.
The foreign prisoners, who number close to 50, were in some cases picked up on the battlefield in Afghanistan and in others detained in third countries and taken to the prison by the CIA, according to U.S. and foreign officials.
With the U.S. government planning to hand over control of the prison, American officials believe that Afghan authorities are unlikely to have any interest in either continuing to hold the foreigners or in putting them on trial. By beginning the repatriation process soon, officials believe they can negotiate transfers with the detainees’ home countries, arrange for post-transfer monitoring, and secure diplomatic assurances that detainees will not be abused when they return home.
That said, the WaPo includes a rather amusing summary of anonymous officials insisting that our hand is not being forced by things like Yunus Rahmatullah’s successful habeas petition in the UK.
Administration officials said they are willing to transfer Rahmatullah, but do not want the basis of such a move to be a foreign court ruling.
And it includes a number of pieces of evidence to suggest these detainees weren’t a threat in the first place.
A small number of detainees [out of 50] may be deemed to pose a terrorist threat, requiring their continued detention or close supervision by their home country if released from the Afghan prison, officials said. Additionally, a number of them are Yemeni, complicating their possible repatriation.
The foreign detainees include two Yemenis and one Tunisian who attempted to secure their release by filing for writs of habeas corpus in the U.S. District Court in Washington in 2009. All three claimed they were captured outside Afghanistan, held at secret CIA prisons overseas, before being transferred to the detention center in Bagram.
A U.S. official said the three men were among those who could be repatriated.
So before we start the process of giving detainees actual, meaningful review of their detention, we’re going to first repatriate a bunch who we’ve known not to pose a threat.
Whatever. I guess if we have to allow the Administration to engage in these fictions to get out of the illegal detention business, I’ll take it.
Can they do it again?
The Master of the Rolls, Lord Neuberger, Lord Justice Maurice Kay, and Lord Justice Sullivan, said the case raised important principles of law. Their court ruling is the latest in a series relating to the treatment of detainees in Iraq and Afghanistan that have been highly critical of the Foreign Office and Ministry of Defence.
The judges rejected a claim by a senior MoD official, Damian Parmenter, that granting a writ for habeas corpus would be “futile”.
Kay said: “On the face of it [Rahmatullah] is being unlawfully detained and [British ministers] have procedures at their disposal … to enable them to take steps which could bring the unlawful detention to an end.”
Though Rahmatullah is in US custody, the UK is the “detaining authority pursuant to the memorandum of understanding struck between the UK and US” during the Iraq invasion, Leigh Day said. British ministers remained “responsible” for Rahmatullah under the Geneva conventions.
The decision relies on the Memorada of Understanding regarding detainees signed between the Brits and the US. The Iraqi one signed in 2003 notes, among other things, that,
Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power [the UK on the present facts] will be returned by the Accepting Power [the US on the present facts] to the Detaining Power without delay upon request by the Detaining Power. [brackets original]
And while the British government claims that MOU is no longer in effect, the judges aren’t buying it.
It is true that Mr Parmenter says that the Ministry of Defense believes that the first MoU is spent. However, in the light of the terms of the two MoUs, that expression of opinion is not enough to dissuade me that it is inarguable that, if the first MoU applied to a person when he was handed over, it was not intended to be disapplied simply because the second MoU was entered into or because hostilities ceased.
And after rehearsing the requirements of the Geneva Conventions (and emphasizing that the Brits had to sign these MOUs in the first place because George Bush said the Conventions didn’t apply with al Qaeda), the ruling includes this implicit threat.
It is unnecessary (and would be inappropriate) to address the question whether, by not taking that course [of demanding the US release Rahmatullah], it might, conceivably, be said that as a result of the combination of section 1 of the 1957 Act and Article 130 of Geneva IV, the UK Government could be aiding or abetting a “grave crime”.
That may not make the British request that we release Rahmatullah sufficiently persuasive to make it happen. But it sure does clarify the issues at hand, doesn’t it?
Update: English v. British corrected per chetnolian.