The Prisoner Shellgame

On Friday, I pointed out that Eric Holder and Dennis Blair used language in a letter on Gitmo’s detainees that suggests some subset of the detainees at Gitmo is not covered by Obama’s Executive Order requiring some resolution to their status.

In recent days, a couple of you have linked to articles about two other shell games the Obama Administration appears to be playing with its detainees. First, it appears that when we cede control over Iraqi prisons to Iraqis later this year, we will retain custody of about 100 detainees from Camp Cropper (where we’ve kept Iraqi High Value Detainees), purportedly at the request of the Iraqi government.

The U.S. military said it plans a July 15 handover of Camp Cropper, which has held high-level detainees such as Saddam Hussein and members of his regime on the outskirts of Baghdad. The roughly 2,900 detainees in Camp Cropper are currently the only Iraqi detainees in American custody, down from a wartime high of 90,000, the U.S. military said.At the Iraqi government’s request, the U.S. will continue to hold about 100 detainees who pose a high security risk, Quantock said, although he was not more specific about who would be kept in custody.

Meanwhile, someone (it’s not clear who) is proposing keeping international detainees at Bagram (which would basically mean Bagram would become a colder less accessible Gitmo). (h/t Jim White–and see this excellent Adam Serwer post on the Bagram debate from last November)

That the option of detaining suspects captured outside Afghanistan at Bagram is being contemplated reflects a recognition by the Obama administration that it has few other places to hold and interrogate foreign prisoners without giving them access to the U.S. court system, the officials said.

Without a location outside the United States for sending prisoners, the administration must resort to turning the suspects over to foreign governments, bringing them to the U.S. or even killing them.

In one case last year, U.S. special operations forces killed an Al Qaeda-linked suspect named Saleh Ali Saleh Nabhan in a helicopter attack in southern Somalia rather than trying to capture him, a U.S. official said. Officials had debated trying to take him alive but decided against doing so in part because of uncertainty over where to hold him, the official added.

U.S. officials find such options unappealing for handling suspects they want to question but lack the evidence to prosecute. For such suspects, a facility such as Bagram, north of Kabul, remains necessary, officials said, even as they acknowledged that having it in Afghanistan could complicate McCrystal’s mission.

Mind you, some of these prisoner shell games may be related. While it would seem that the US will have to hold Iraqis within Iraq, if there really are people at Gitmo who don’t qualify for the Task Force review, I can imagine that someone would like to keep them away from a prison in Illinois where their presence may become an issue.

But all this illustrates two things. First, there are a number of people against whom we have intelligence that is strong enough to get them imprisoned, but shoddy enough we want to make sure no independent body ever reviews it. As I noted yesterday, one troubling aspect of the shell game they’re playing with the Army Field Manual’s Appendix M is that it appears to be applicable to those who we can label an illegal enemy combatants even though they have not engaged in any act of war against us. Which sounds like the kind of people we might want to throw into Gitmo.

And this ongoing shell game with detainees also makes another thing clear: we really need someone (like SCOTUS) to insist that the same access to some review process now available to Gitmo detainees be available to Bagram detainees. Until that happens, our government seems intent on holding people in arbitrary detention.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

16 replies
  1. Mary says:

    The Geneva Conventions already require real status review tribunals that mean something like our habeas hearings, not the kangaroo CSRTs.

    So a SCOTUS who adheres to the GCs would be kewl – but that SCOTUS isn’t named Obama.

    OTOH, he’s got Koh with him on his assassination program.

    At least if we’d elected McCain, there’d be a party of opposition.

  2. bobschacht says:

    And this ongoing shell game with detainees also makes another thing clear: we really need someone (like SCOTUS) to insist that the same access to some review process now available to Gitmo detainees be available to Bagram detainees. Until that happens, our government seems intent on holding people in arbitrary detention.

    Amen to this!
    Probably not gonna happen, though, until a properly drawn lawsuit is filed against Uncle Sam by some organization with standing in the case. Amnesty International, maybe?

    Bob in AZ

  3. fatster says:

    O/T, but related–don’t believe this has been linked yet (apologies if it has)

    Court rejects new challenge from Gitmo detainees

    [Uighurs]

    LINK.

      • earlofhuntingdon says:

        The link to MSNBC works fine. The Court refused to consider an appeal that denied the Uighurs at least a 30-day notice of where the US intends to send them when it finally admits its error and releases these “no threat” prisoners from long term custody.

        Can any of us imagine being in their shoes? Wrongly imprisoned and mistreated for years. Denied release ordered by the courts. Unable to go home for fear of comparable mistreatment by China. Knowing that without warning or preparation, they may be sent from a Caribbean prison to god knows where – a Pacific atoll, Scandinavia, Canada, South America, the Middle East.

        And Barack Obama wonders why the world looks skeptical when he promotes the brilliance of America’s respect for human rights and the rule of law?

        • Mary says:

          And also knowing that so many countries are willing to curry favor with China and that Obamaco is very likely to pull something like sending them to a country full well knowing that, when the attention dies down, that country might extradite them back to China.

  4. earlofhuntingdon says:

    Dick Cheney’s irrationally frightened old-man’s “1% doctrine” – “Get the hell outta my yard!” – is alive and well. It’s promoter now sits in the Oval Office instead of down the hall.

    If individuals are dangerous enough to be a credible threat to the safety and security of Americans or America, the process by which that determination is made out to yield evidence admissible in a court of law, which would allow the United States to detain them legally. As bmaz has said many times, as currently drafted and interpreted, the crime of providing “material support” for “terrorism” is among the easiest of federal crimes to take to a jury and win a verdict.

    Yet, we still claim the evil junta’s right to detain prisoners without charge or trial, without even identifying them. Why do we do that? Out of fear of revealing “sources and methods”? Fear of revealing the extent and scope of the administration’s domestic spying? Because of an obstinate, Cheneyish and unconstitutional refusal to subject executive decision making to any scrutiny? Or from fear that that the internal process by which such decisions are made is as arbitrary as that oxymoron known as Texas justice?

    If even this conservative Supreme Court concluded that Gitmo prisoners have limited legal rights, then the same principles that led to that decision ought to apply to prisoners held by our government anywhere in the world. Certainly, that’s the aspiration of habeas corpus, if not the exact extent of its reach in American jurisprudence. That is, that the rules that limit monarchical or executive authority extend as far as the attempted exercise of that authority over the life and limb of another.

  5. Mary says:

    it appears to be applicable to those who we can label an illegal enemy combatants even though they have not engaged in any act of war against us

    This is all the more complicated with the various legislative attempts to describe who is an illegal enemy combatant (per the MCA, anyone Bush said, no matter what evidence to the contrary – unfortunately the courts haven’t bought that one) and the various court struggles with that question, as they try to validate things that no court of law, civilian or military, has ever validated before – the concept that someone who aks “do you want fries with that” is guilty of some kind of a war act and/or war crime for providing material support.

    So the varied court definitions just make it more muddled vis a vis who the field manual offers up for intorturgation and the way the courts and Congress have acted to date, especially with allowing war activities by the US in places from Somalia to Pakistan to Macedonia to Italy without any check or focus on the lack of any constitutionally declared war – they (the courts) are almost definitely not going to jump into the issue of intorturgrations.

    • bmaz says:

      Yes. But that is the design of both Bush and Obama; both have taken great pains to play a legal shell game on any detainee case that could lead to such a definitive ruling in Article III courts.

  6. skdadl says:

    For such suspects, a facility such as Bagram, north of Kabul, remains necessary, officials said, even as they acknowledged that having it in Afghanistan could complicate McCrystal’s mission.

    There it is again — the implication that McChrystal is above all this, when in fact he’s very much a part of it, I thought.

    The whole system seems monstrous to me in all the ways that eoh lists @ 5. We have no way of knowing why these people are being held. We do know that “actionable intelligence” is just a fancy way of saying something pretty banal — this person may have been somewhere, seen something, known somebody. But that’s true in criminal investigations as well — entirely innocent people are witnesses, sometimes without even knowing they were witnesses, so the police have to talk to them. But the police don’t throw them in jail first, for pete’s sake, and then keep them indefinitely because their treatment has become embarrassing to the self-important interrogators.

    Any of us may have “actionable intelligence” — I mean, in some context, we all do. And never doubt that that logic could and may be used against some of us in the future.

    • crossword says:

      There it is again — the implication that McChrystal is above all this, when in fact he’s very much a part of it, I thought.

      I can’t stress how intentional that is. There may or may not be a political motivation behind this obviously coordinated public relations push on behalf of Chairman of the Joint Chiefs of Staff General Stanley McChrystal.

      /begin_parsing

  7. bluewombat says:

    Thanks for keeping us posted on this issue, Marcy. It makes my blood boil to see the level of autocratic thuggery we’ve descended to.

  8. ondelette says:

    If the 100 prisoners at Camp Cropper are Iraqis, and if they are supposedly not legitimate combatants, then they are civilians and they may not be removed from Iraq under Article 49 of the 4th Geneva Conventions.

    And this ongoing shell game with detainees also makes another thing clear: we really need someone (like SCOTUS) to insist that the same access to some review process now available to Gitmo detainees be available to Bagram detainees. Until that happens, our government seems intent on holding people in arbitrary detention.

    Unfortunately, Judge Bates (D.C. Circuit) ruled otherwise for all of those at Bagram who are Afghan. This is part and parcel of the erroneous logic that has pervaded all three branches of American government since this thing began in 2001. The Geneva Conventions contain no provision for ruling on the Article 4 status of any group of people. They contain provisions only for ruling on a case by case basis in, as Mary mentioned, Article 5 hearings.

    Even more unfortunately, when the Supreme Court let stand the ruling in Rasul v. Myers, they legalized cruel, inhuman, and degrading treatment for non-American prisoners abused by U.S. personnel outside of the “sovereign U.S.” (doesn’t include Guantánamo). That’s in direct violation of a lot of statutory and customary international law, but the country has been acting like a law unto itself for quite a while now, the Bush administration just carried it a little further than people thought they could. But it started with the ruling against the U.S. in 1986 in Nicaragua v. U.S.A., and continued with the Feith and Sofaer successful bid to keep the U.S. from ratifying the Additional Protocols.

    The world considers common Article 3’s guarantee to a hearing in a “regularly constituted court” to be “elementary considerations of humanity”, and the guarantees in Article 75 of the 1st AP to be “fundamental”. You can go look. All the rights you might expect are there. Because what you might expect is what is meant by “affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. If we don’t recognize those guarantees, we aren’t civilized. I think the usual word is “barbaric”.

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